IN THE CASE OF:	  

		BOARD DATE:	18 June 2015

		DOCKET NUMBER:  AR20140019299


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge characterization from under other than honorable conditions to honorable.

2.  The applicant states his upgrade request has been filed. 

3.  The applicant provides:

* a diploma from Frazier's Barber College, dated 31 September 2004
* a letter from Mrs. Gxxxxx Fxxxxxx, dated 15 February 2005
* a printout from the Texas Department of Licensing and Regulation website
* a letter from Houston Community College, dated 30 June 2013
* a letter from the Houston Community College – Southwest chapter of The National Society of Leadership and Success, Sigma Alpha Pi, undated 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 24 March 1994.  He completed his initial entry training and was awarded military occupational specialty 31L (Wire Systems Installer).

3.  He was reported by his unit as absent without leave (AWOL) on                    19 September 1995.

4.  He was dropped from the rolls of the Army on 20 October 1995.

5.  Court-martial charges were preferred against him on 23 October 1995 for absenting himself from his unit on or about 19 September 1995 and for remaining absent as of the date the charges were preferred.

6.  He was returned to military control on 26 February 1996.

7.  Court-martial charges were preferred against him on 29 February 1996 for absenting himself from his unit from on or about 19 September 1995 through on or about 26 February 1996.

8.  He consulted with legal counsel on 29 February 1996 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

9.  In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He declined to submit a statement in his own behalf.

10.  The separation authority approved his request for discharge on 22 April 1996, and directed his reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  

11.  He was discharged accordingly on 8 May 1996.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and his service was characterized as under other than honorable conditions.  

12.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 19 November 1997.

13.  The applicant provides several documents that attest to his post-service success in a number of endeavors; however, none of the provided documentation concerns the events during his period of military service that resulted in his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses, for which the authorized punishment includes a punitive discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, including a violation of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, it did not support the issuance of an honorable or general discharge by the separation authority at the time, and it does not support an upgrade of his discharge now.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





      _____________x_____________
                  CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140019299



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