IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019924 


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 under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he was unaware of his options until now 
* he believes his discharge is in error or unjust
* he admits to making a mistake while he was a young man serving in the Army
* his one mistake should not be the sole reflection of his entire military career
* he did not take advantage of the alternate options and this has greatly affected him 
* he departed the Army with a discharge under other than honorable conditions and he inadvertently erased almost 10 years of superior service by doing so
* his character of service has hurt him over the years for potential and gainful employment opportunities
* since his discharge, he has been married for 14 years with children and he has worked hard to ensure that he lived an honorable life
* plumbing is his career and he resides in Florida

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 30 December 1987.  He reenlisted on 26 July 1991 and 19 January 1996.

3.  Court-martial charges were preferred against him on an unknown date; the DA Form 458 (Charge Sheet) is not available for review.

4.  On 13 May 1997 after consulting with counsel, the applicant 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.

	a.  He stated he understood:

* he could request discharge in lieu of trial by court-martial because charges had been preferred against him under the Uniform Code of Military Justice that authorized imposition of a bad conduct or dishonorable discharge
* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he was advised of the implications attached to his request

	b.  He acknowledged that:

* he was guilty of one or more of the charges against him or of lesser-included offenses
* he did not desire rehabilitation or further military service under any circumstances
* he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Department of Veterans Affairs as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

6.  He submitted the following statement in his own behalf:

* he believed it would benefit himself and the Army to be discharged
* he served faithfully for 9 years and it was time to move on
* Sergeant G____ D____ told him he was the one responsible for breaking into the 10th Special Forces Group Organizational Clothing and Individual Equipment office and that –

*	he broke the window to one of the offices within the Group Support Company and Headquarters Support Company, 10th Special Forces Group, and then proceeded across the hall into the Group S-4 and then into the Central Issue Facility office
*	he cut his right thumb during the break-in process
*	once he was inside the Central Issue Facility office he loaded three body bags which he got from his office
*	he was not clear about what he had taken out
*	he then exited the rear entrance of the building where he had pre-positioned a motor pool vehicle from his section earlier that day
*	after he loaded the vehicle, he went to his residence on Fort Carson where he made the transaction with an individual named King

* he knew Sergeant G____ D____ took some rucksacks, Matterhorn boots, and goggles, and all of this took place on or about 2 May 1997

7.  On 20 August 1997, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions and reduction to the lowest enlisted grade.

8.  On 27 August 1997, he was discharged accordingly.  His DD Form 214 shows he was discharged by reason of conduct triable by court-martial with his service characterized as under other than honorable conditions.  He completed 9 years, 7 months, and 28 days of active service.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 3-7b states 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.

	c.  Paragraph 3-7a states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  Although his DA Form 458 is not available, the evidence of record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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)                                         AR20140019924



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ABCMR Record of Proceedings (cont)                                         AR20140019924



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