BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20150019001 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 BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20150019001 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. BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20150019001 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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge. 2. The applicant states he was young and he was not aware of the legal process. He was falsely misled by his chain of command and counsel. a. He never had any legal action taken against him, but he was having issues with his lieutenant at the time. He tried several times to be reassigned. b. He was on a medical profile and started the medical board process; however, they somehow illegally found a way to try to override his medical board by making him sign chapter [paperwork] for allegedly making verbal threats. c. He has been illegally taken advantage of; the sole purpose was to prevent him from being evaluated by a medical board. They intentionally tried to lose his medical records to cover it up. He has been facing a hardship because of the issue and he just wants to get the issue resolved. 3. The applicant provides no additional evidence in support of his request. 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 17 August 2006. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 92A (Automated Logistical Specialist). 3. A DD Form 2707 (Confinement Order), dated 11 September 2007, shows the applicant was placed in pre-trial confinement for violating the following articles under the Uniform Code of Military Justice (UCMJ): * Article 86 – being absent without leave (AWOL) * Article 86 – failure to repair (5 specifications) * Article 87 – missing movement * Article 89 – being disrespectful (2 specifications) * Article 91 – insubordinate conduct (5 specifications) * Article 92 – failure to obey (4 specifications) * Article 128 – assault (domestic violence) * Article 134 – disorderly conduct * Article 134 – breaking restriction * Article 134 – failing to pay a debt * Article 134 – communicating a threat (2 specifications) 4. A DD Form 458 (Charge Sheet), dated 11 September 2007, shows court-martial charges were preferred against the applicant for violating the following Articles under the UCMJ: * Article 86 – failure to repair (4 specifications) * Article 86 – AWOL from 5 to 6 September 2007 * Article 87 – missing movement on 26 April 2007 * Article 89 – being disrespectful * Article 90 – willfully disobeying (2 specifications) * Article 91 – insubordinate conduct (7 specifications) * Article 107 – making a false official statement (2 specifications) * Article 128 – assault (domestic violence) * Article 134 – disorderly conduct * Article 134 – breaking restriction 5. A memorandum, from Headquarters, 43rd Area Support Group (Rear) (Provisional), dated 26 December 2007, shows the applicant's commander provided a performance statement that indicates: * his duty performance was poor * he had not been deployed * he was not diagnosed with post-traumatic stress disorder or traumatic brain injury and he was not pending a medical evaluation board * he was in pre-trail confinement and was awaiting court-martial scheduled for 15 January 2008 6. On 27 December 2007, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge – in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he acknowledged he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He acknowledged he had been advised as to the possible effect of an under other than honorable conditions discharge and he understood he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He declined to make a statement in his behalf. 7. On 27 December 2007, the applicant's battalion and brigade commanders recommended approval of the applicant's request for discharge in lieu of trial by court-martial. 8. On 28 December 2007, the separation authority approved the applicant's request for separation on under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge. 9. The applicant was discharged from the Army on 4 January 2008. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation  635-200, chapter 10, with service characterized as under other than honorable conditions. 10. The applicant's record is void of evidence that shows he was either pending or undergoing a medical evaluation board prior to discharge. 11. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB denied his request for an upgrade of his discharge on 8 June 2011. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. 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. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. The applicant contends he was young and was falsely misled by his chain of command and counsel. 2. The applicant enlisted in the Regular Army at 18 years of age. After serving on active duty for more than 1 year and 4 months, he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 4. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 5. The applicant had an extensive record of indiscipline during his brief period of military service. While confined and pending a court-martial, he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge. His misconduct suggests his overall record of service did not rise to the level typically associated with the issuance of either an honorable or general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019001 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2