IN THE CASE OF:	

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020962 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he is older now and he has a better perspective on life when it comes to his personal finances.  He has taken classes on budgeting and planning for both short and long-term financial goals.  As a result, he has learned how to properly manage his income and expenses.

3.  The applicant provides no evidence in support of his application.

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 10 October 1996 for a period of 3 years.  At the time he was 19 years of age.

3.  Upon completion of training he was awarded military occupational specialty 13F (Fire Support Specialist).  He was then:

* assigned to the 101st Airborne Division (Air Assault), Fort Campbell, KY
* promoted to private first class (PFC)/pay grade E-3 on 1 August 1997

4.  A review of the applicant's military personnel records failed to reveal a copy of a DD Form 458 (Charge Sheet).

5.  On 6 April 1999, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be:

* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the Veterans Administration
* deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf; however, he did not elect to submit any statements.

   e.  The applicant and his counsel placed their signatures on the document.


6.  On 29 April 1999, the Staff Judge Advocate advised the Commanding General, 101st Airborne Division (Air Assault), Fort Campbell, KY, that the chain of command recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  He noted that the applicant was charged with violations of the UCMJ, as follows:

* one specification of Article 121 for larceny
* one specification of Article 123a for knowingly uttering worthless checks
* three specifications of Article 134 for:

* failing to maintain funds in his checking account
* adultery
* wrongful cohabitation

7.  On 29 April 1999, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

8.  The applicant's DD Form 214 shows he was discharged on 14 May 1999 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  He had completed 2 years, 7 months, and 5 days of net active service during this period.

9.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 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.  Chapter 3, 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. 	Chapter 3, 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.

11.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was too young to serve honorably on active duty, but he now has a better perspective on properly managing his personal finances.

2.  The evidence of record shows the applicant was 19 years of age when he enlisted in the Regular Army.  He successfully completed training, was awarded MOS 13F, and he was promoted to PFC (E-3).  Thus, the evidence of record does not support his contention that he was too young to meet the standards of acceptable conduct and performance of duty for Army personnel.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who properly managed their personal finances and completed their military service obligations.

3.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  

   a.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

   b.  Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.

4.  The evidence of record shows that the applicant was charged with and he admitted guilt to larceny, knowingly issuing worthless checks, failing to maintain funds in his checking account, adultery, and wrongful cohabitation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  The applicant's contention regarding his post-service management of his personal finances was considered.  However, his post-service achievement is insufficient as a basis for upgrading his discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief to either a general or an honorable discharge.

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 that 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)                                         AR20140020962



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ABCMR Record of Proceedings (cont)                                         AR20140020962



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