IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140021712 


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 change to the narrative reason for his separation and upgrade of his under honorable conditions discharge.

2.  The applicant states that he was lied to about the discharge process.  At the time of the incident that led to his discharge, he was told that everything could be handled at the battery level.  He was also told he would be allowed to reenlist in the Regular Army (RA) if he accepted the nonjudicial punishment (NJP).  He was not offered any other options.  After he accepted NJP, he was told that he could not reenlist.  Six months later, charges were brought against him and he was separated from the Army.  He states that he was punished more than once for the same offense.

3.  The applicant provides no documentary 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 had prior enlisted service in the Army National Guard (ARNG) of the United States and Florida ARNG from 29 August 1994 through 28 January 1999.

3.  He enlisted and entered active duty in the RA, on 29 January 1999, for a period of 3 years.  He was awarded military occupational specialty 13F (Fire Support Specialist) and promoted to specialist/pay grade E-4 on 23 November 2000.  He reenlisted in the RA on 25 April 2001 for a period of 6 years.

4.  A review of the applicant's military personnel records failed to reveal a copy of any NJP.

5.  On 5 September 2001, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 112a (three specifications), between 1 July 2000 and 1 October 2000, at or near Fort Bragg, NC:

* wrongfully possessing lysergic acid diethylamide (LSD), a controlled substance
* wrongfully using LSD
* wrongfully distributing LSD

6.  On 10 September 2001, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the 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. He indicated that he was submitting a letter seeking the support of his chain of command to obtain a general discharge.

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

   f.  A review of the applicant's statement shows that he provided a summary of his military successes, including his completion of airborne training, leadership in the ARNG, participation in training exercises, and being recommended for promotion to grade E-5.  He also noted his responsibilities as a father of two children and providing support to his disabled parents.  He added that family is very important to him and he wanted to leave his children with a good example of his military career.  He requested the "most honorable condition possible."

7.  His chain of command recommended approval of his request for discharge with the issuance of a general, under honorable conditions discharge.

8.  On 21 September 2001, the separation authority approved the applicant's request for discharge and directed a general discharge with service characterized as under honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 October 2001 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial with an under honorable conditions (general) discharge.  He had completed 2 years, 8 months, and 5 days of net active service during this period.

10.  The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He personally appeared before the ADRB on 16 September 2003.  On 26 September 2003, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.


11.  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.

12.  AR 635-5 (Separation Documents), in effect act the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

	b.  Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.  It shows item 18 is used for entries required by HQDA, for which a separate block is not available and for completing entries too long for their blocks.

		(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."

		(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was provided inaccurate information about the discharge process, he was punished twice for the same offense (i.e., NJP and discharge), and he was not offered any other options.

2.  There is no evidence of a record of NJP.  Thus, the basis for the NJP the applicant refers to cannot be determined.  Nonetheless, it is reasonable to presume that the applicant was afforded the opportunity to consult with legal counsel prior to accepting the NJP in lieu of trial by court-martial.

   a.  On 5 September 2011, the applicant was charged with violation of the UCMJ, Article 112a (three specifications).  The evidence of record shows he was afforded the opportunity to consult with legal counsel when he submitted his request for discharge in lieu of trial by court-martial.  The applicant could have raised the legal issue of "double-jeopardy" to his counsel at that time; however, there is no evidence of record that shows he did so.  In fact, the evidence of record shows the applicant was offered the option of voluntarily submitting a request for administrative discharge in lieu of trial by court-martial.

   b.  Thus, the applicant's contention that he was not offered any other options is not supported by the evidence of record.

3.  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.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the narrative reason for his separation and characterization of his service were appropriate and equitable.

4.  During the period of service under review, the applicant admitted guilt to wrongfully possessing, using, and distributing a controlled substance (LSD) when he voluntarily submitted his request for discharge in lieu of court-martial.  In addition, he was credited with completing less than 6 months of his 6-year reenlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.


5.  Records show the applicant had two separate periods of enlistment in the RA during the period of service under review, as follows:

* enlisted on 29 January 1999 – honorably discharged on 24 April 2001 to reenlist
* reenlisted on 25 April 2001 – discharged under honorable conditions on 
3 October 2001

6.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   a.  The evidence of record also shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment.

	b.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

	c.  Thus, it would be appropriate to correct item 18 of his DD Form 214 to show his continuous period of honorable active service (from 29 January 1999 through 24 April 2001).

7.  Therefore, in view of all of the foregoing, the applicant's DD Form 214 should be corrected, as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following entry to item 18 of his DD Form 214:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19990129 UNTIL 20010424."
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of the characterization of his entire period of service to honorable.




      _______ _   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)                                         AR20140021712



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ABCMR Record of Proceedings (cont)                                         AR20140021712



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