IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012506 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012506 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. IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150012506 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 characterization of service from under other than honorable conditions to honorable. 2. The applicant states that at the time of the incident, he was young and unaware of the gravity of his actions. Based on his understanding that a discharge may be upgraded, he feels he has suffered for a substantial amount of time. 3. The applicant provides three pages of a DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States). 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 was over 18 years of age when he enlisted in the Regular Army on 5 July 1978. 3. His record contains a DA Form 458 (Charge Sheet), dated 12 August 1983, which shows court-martial charges were preferred against him when he was 23 years of age for: * selling about 2,285 gallons of unauthorized fuel, of a value of about $2,769.35, the property of the United States military, to Korean nationals during the month of January 1983 * on or about 15 March 1983, wrongfully and unlawfully making, an under lawful oath, a false statement 4. The applicant met with counsel and he voluntarily requested discharge for the good of the service on 17 August 1983, 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. He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the Uniform Code of Military Justice (UCMJ), which authorized the imposition of a bad conduct or dishonorable discharge. He stated he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. a. He acknowledged that prior to completing his request for discharge; he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses, which he was charged. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if found guilty. b. He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged he had been advised and understood the possible effects of a punitive discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him. c. He acknowledged he understood that once he submitted his request, he could withdraw it with the separation authorities' consent or, without the separation authorities consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. He further acknowledged that he understood there was no automatic upgrade of his discharge nor a review by any Government agency of a less than honorable discharge. He must apply to the Army Discharge Review Board (ADRB) or ABCMR if he wanted his discharge reviewed. Statements in his own behalf were not submitted with his request. 5. On 26 August 1983, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 7 September 1983, he was discharged accordingly. 6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 5 years, 2 months, and 3 days of creditable active service with no lost time. 7. There is no evidence indicating he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 states 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: 1. The applicant's record shows 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. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 2. Notwithstanding the applicant's sincerity, he was nearly 23 years of age at the time of his offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military service. 3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time. There is no evidence of procedural errors, which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service does not meet the criteria for a general or an honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012506 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012506 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2