IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160003881 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: 28 September 2017 DOCKET NUMBER: AR20160003881 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: 28 September 2017 DOCKET NUMBER: AR20160003881 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 (UOTHC) discharge. 2. The applicant states he regrets any and all unfortunate circumstances that led to the UOTHC discharge; he would appreciate any consideration for an upgrade. 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 10 September 1992. He completed his initial entry training (IET) and was awarded military occupational specialty 13B (Cannon Crewmember). Following the completion of IET, he was reassigned to Germany. 3. The applicant completed an 18 month tour in Germany and was awarded the Army Achievement Medal for meritorious service from 1 January 1993 to 15 June 1994. He was then reassigned to Fort Lewis, WA. 4. A DA Form 3975 (Military Police Report), dated 24 April 1995, shows the applicant was apprehended by military police for the following offenses on or about 23 April 1995: * illegal possession of a firearm (pistol) * concealed weapons violation * brandishing a firearm * assault * felony eluding 5. A Fort Lewis Form Letter 1885 (Court-Martial Charges Transmittal) shows court-martial charges were preferred against the applicant, on or about 1 May 1995, and his command recommended a bad conduct discharge by way of a special court-martial. His record indicates he was charged with violating the following Articles under the Uniform Code of Military Justice (UCMJ): * Article 92 – violating a general regulation * Article 95 – resisting apprehension * Article 134 – two specifications of communicate a threat and unlawful carry of a concealed weapon 6. The applicant consulted with legal counsel on 16 May 1995 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 a UOTHC discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 7. In his request for discharge, the applicant indicated he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable. He indicated he had been advised as to the possible effect of a UOTHC discharge and 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 8. The separation authority approved the applicant's request for separation in lieu of trial by court-martial on 31 May 1995, and directed that he be separated under the provisions of Army Regulation 635-200, chapter 10, and that his service be characterized as UOTHC. 9. The applicant was discharged on 12 June 1995. 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, and his service was characterized as UOTHC. 10. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 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 of the version in effect at the time provided that a member who committed an offense or offenses 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 charged, 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. A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant requests an upgrade of his UOTHC discharge. 2. While stationed at Fort Lewis, WA, the applicant was charged with the commission of serious offenses 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. 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. //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) AR20160003881 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2