BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160001024 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: 12 September 2017 DOCKET NUMBER: AR20160001024 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: 12 September 2017 DOCKET NUMBER: AR20160001024 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 his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states he is embarrassed to show his discharge to others. He is making changes in his life and is a law abiding person who is respected in his community. He has lived a clean life since his discharge. He contends he was experiencing some major difficulties and made a stupid decision. He ended up at the wrong place at the wrong time. He drank too much one night and was charged with driving under the influence, he has received no others. He was given a choice to take the discharge or serve at least 6 months [of confinement]. Looking back now, he should have tried to clear his name and record. He was young and stupid and took the discharge. 3. The applicant provides: * memorandum from Headquarters, 2nd Squadron, 2nd Armored Cavalry Regiment, dated 15 August 1990, subject: Request for Early Return of Family Members, Sergeant (SGT) [Applicant]… * DA Form 5182-R (Urinalysis Custody and Report Record), dated 28 February 1991 * four Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), submitted as third-party statements on his behalf * a five-page, self-authored statement in support of his claim 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 January 1984. 3. A DD Form 458 (Charge Sheet), dated 4 April 1991, shows court-martial charges were preferred against the applicant for: * sodomy, on or about 9 February 1991 * wrongful use of marijuana in the hashish form, on or about 9 February 1991 * operating a vehicle while drunk in a reckless manner, on or about 25 March 1991 * failing to stop and render aid when he was involved in a vehicle accident, on or about 25 March 1991 * failing to notify military police or civil police immediately after an accident in which he was the driver, on or about 25 March 1991 * wrongfully leaving the scene of an accident, on or about 25 March 1991 4. The applicant consulted with legal counsel on 12 April 1991 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 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, due to the charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. a. In the applicant's request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable and furnished an Under Other than Honorable Discharge Certificate. b. He acknowledged he had been advised of the possible effect of an under other than honorable conditions character of service and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. Counsel submitted a statement in the applicant's behalf requesting approval of the chapter 10 discharge as the proper resolution of the case to avoid the necessity and personal embarrassment of the dependent spouses having to testify at proceedings. 5. The separation authority approved the applicant's request for discharge on 14 May 1991 and directed the issuance of an under other than honorable conditions discharge. 6. The applicant was discharged on 10 June 1991. 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, for the good of the service in lieu of trial by court-martial and his service was characterized as under other than honorable conditions. 7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 8. The applicant provides: a. A memorandum from the Squadron Chaplain, Headquarters, 2nd Squadron, 2nd Armored Cavalry Regiment, dated 15 August 1990, which shows the applicant requested early return of his family members to the continental United States. b. A DA Form 5182-R, dated 28 February 1991, which shows the applicant provided a urine sample. c. Four character references statements that attest to his high moral character, integrity, community service, and church involvement. d. A five-page, self-authored statement, wherein he states he was unjustly charged with two offenses that have tremendously affected his life and family. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. The available evidence shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. 3. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant's voluntary request for discharge to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 4. The applicant's record shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication his request for discharge was made under coercion or duress and there is no evidence of procedural errors that would have jeopardized his rights. 5. Based on the applicant's record of misconduct that included violations of the UCMJ that resulted in preferred court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, the evidence indicates the separation authority correctly determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 6. 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. 7. An under honorable conditions (general) characterization of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable 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) AR20160001024 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001024 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2