BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001642 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: 19 September 2017 DOCKET NUMBER: AR20160001642 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: 19 September 2017 DOCKET NUMBER: AR20160001642 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 under other than honorable conditions discharge to an honorable discharge. 2. The applicant states his life has completely changed, he is seeking gainful employment, and he would like to contribute to society. 3. The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) with 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 enlisted in the Regular Army on 23 September 1988. Upon completion of initial entry training, he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). 3. His record shows he twice accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates: * 19 February 1991 – for disobeying a lawful order given by his superior commissioned officer on or about 30 December 1990 * 23 January 1992 – for unlawfully assaulting another Soldier by pushing his head into a heater on 1 January 1992 4. On 24 March 1992, a DD Form 458 (Charge Sheet) was completed preferring a court-martial charge against the applicant for violating Article 134 of the UCMJ. This document shows he wrongfully committed an indecent act upon a female, not his wife, by forcing her to place her hand on his private area by grabbing and twisting her arm and threatening to hit her in the face. 5. After being charged, the applicant consulted with legal counsel and he 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 conditions other than honorable discharge and of 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. He indicated he had not been subjected to coercion whatsoever by any person and he was making the request of his own free will. He elected not to submit a statement on his own behalf. 6. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, 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. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an Under Other Than Honorable Conditions Discharge Certificate. He indicated he understood that there was no automatic upgrading of his discharge or an automatic review without proper application. 7. On 17 April 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10. He directed the applicant receive a discharge under other than honorable conditions. He further reduced him to private, pay grade E-1. 8. On 13 May 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, having completed 3 years, 7 months, and 21 days of net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service as under other than honorable conditions. 9. The applicant did not apply to the Army Discharge Review Board (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 states 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 discharge 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 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. DISCUSSION: 1. The applicant received two NJPs for disobeying a lawful order and for assault prior to being charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial to avoid possible incarceration and a punitive discharge. 2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his discharge. 3. Based on his record of indiscipline, the separation authority determined that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is no evidence of error in the separation authority's determination that his service did not rise to the level required for a general or 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) AR20160001642 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001642 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2