IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140021553 


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 a review of his discharge status and correction of his military records to show his rank and privileges were restored.  He also requests a personal hearing.

2.  The applicant states a letter was found to show the evidence was not founded.  A court-martial was issued in 1983.  Upon reviewing the charges, the Army determined the charges to be false.  The sentence was set aside and the finding of guilty and the sentence were dismissed.  His honorable discharge and ability to receive benefits were restored.  He proudly served his country and he was decorated and highly favored.  He wants his records reviewed so his discharge could be changed and he would be able to receive medical benefits. 

3.  The applicant provides General Court-Martial Orders Number 39, dated 7 October 1985. 

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.  Having had prior active service, the applicant reenlisted in the Regular Army on 21 May 1979.  He held military occupational specialty 19E (M-48/M-60 Armor Crewmember). 

3.  He served in a variety of assignments including Germany and he attained the rank/grade of specialist five (SP5)/E-5.  He was awarded or authorized the: 

* Good Conduct Medal
* Army Service Ribbon
* NCO professional Development Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 
* 1st Class(Sharpshooter) Marksmanship Qualification Badge with Grenade Bar 
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber) 

4.  On 4 March 1983, court-martial charges were preferred against the applicant for violating the Uniform Code of Military Justice (UCMJ) as follows: 

* Charge I, Article 92, one specification of dereliction of duties by failing to prevent two Soldiers from using marijuana while on guard duty 
* Charge II, Article 134, one specification of wrongfully using marijuana while on duty as a sentinel, one specification of wrongfully possessing marijuana while on duty as a sentinel, one specification of wrongfully using marijuana, and one specification of wrongfully possessing marijuana

5.  On 20 April 1983, the applicant was arraigned and tried by a general court-martial of violating the UCMJ as follows: 

* Charge I, one specification of dereliction of duties by failing to prevent two Soldiers from using marijuana while on guard duty 
* Charge II, one specification of wrongfully using marijuana while on duty as a sentinel, one specification of wrongfully possessing marijuana while on duty as a sentinel, one specification of wrongfully using marijuana, and one specification of wrongfully possessing marijuana

6.  The Court found him guilty of Charge I and its specification and Charge II and two of its specifications.  The Court sentenced him to a reduction to private/E-1, forfeiture of all pay and allowances, confinement at hard labor for 13 months, and a dishonorable discharge.

7.  On 3 June 1983, the convening authority approved a lesser sentence of a bad conduct discharge, forfeiture of pay and allowances, reduction to E-1, and confinement at hard labor for 13 months.  The execution of the portion of the sentence to confinement at hard labor in excess of 8 months was suspended for 1 year and, except for that part of the sentence extending to the bad conduct discharge, ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 29 September 1983, the applicant was released from confinement.  He was immediately placed on excess leave by the Commander, Corrections Holding Detachment, pending a decision by the appellate court. 

9.  On an unknown date between September 1983 and August 1985, the U.S. Army Court of Military Review rendered a decision that the findings of guilty and the sentence were set aside and ordered a rehearing.

10.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 39, dated 7 October 1985, shows the findings of guilty and the sentence were set aside on 9 August 1985 and a rehearing was ordered before another court-martial to be designated.

11.  The new court-martial convening authority decided a rehearing was not practical and based on the authority contained in Army Regulation 635-200 (Personnel Separations), the applicant submitted a request for discharge in lieu of trial by court-martial.

12.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged:

	a. he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; 

	d. that under no circumstances did he desire further rehabilitation or to perform further military service; and 

	e. he elected not to submit a statement in his own behalf. 

13.  On 2 August 1985, the applicant's intermediate and senior commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

14.  On 9 August 1985, consistent with the chain of command's recommendations, the Commanding General, Fort Leavenworth, KS (separation authority) approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  He also dismissed the court-martial charges. 

15.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 40, dated 7 October 1985, shows the findings of guilty and the sentence were set aside on 9 August 1985 and a rehearing was not practicable; the applicant's application for discharge from the Army under chapter 10 of Army Regulation 635-200 was approved on 9 August 1985.  All rights, privileges, and property of which the applicant was accused and has been deprived by virtue of the findings of guilty and the sentence so set aside will be restored.

16.  On 31 October 1985, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 also shows he completed 6 years, 5 months, and 11 days of active service and he had excess leave from 29 September 1983 to 31 October 1985. 

17.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

	a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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. 

19.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant was convicted by a general court-martial of which was warranted by the gravity of the offenses charged at the time.  The appellate court set aside the fining of guilty and the sentence and ordered a rehearing.

3.  The new court-martial convening authority believed retrial was not practicable and the applicant was offered the option to separate via administrative channels vice trial by court-martial.  He was charged with the commission of offenses 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 

4.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.  The fact that the U.S. Army Court of Military Review rendered a decision that the findings of guilty and the sentence were set aside had no bearing on the final action taken.  His characterization of service is appropriate and he should not have it changed.

5.  The U.S. Army Court of Military Review ordered a rehearing but when the applicant chose the administrative discharge in lieu of trial by court-martial, in exchange, his charges were dismissed and his rights were restored as far as no longer being tried by a court-martial.  However, a chapter 10 – a discharge that he voluntary chose – carries with it a reduction to the lowest enlisted grade and under other than honorable conditions characterization of service.

6.  When the separation authority approved his voluntary request for discharge in lieu of trial by court-martial he ordered his reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

7.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge to either an honorable or a general discharge or changing his grade to anything but E-1. 



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)                                         AR20140021553



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ABCMR Record of Proceedings (cont)                                         AR20140021553



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