BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150006652 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 the upgrade to honorable of his under other than honorable conditions discharge. He additionally requests to personally appear before the Board. 2. The applicant states, in effect: * 20 years ago he was involved in an incident which forced him to accept a discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) * in his opinion, his actions as a young career-minded Soldier should have been given the benefit of the doubt * he contends this should especially have been the case since the other young men involved in the incident which resulted in his chapter 10 discharge took responsibility for the offenses charged * being now 20 years older, he has learned a great deal from that experience and would like the person he has now become to be reflected in his military record 3. The applicant provides a court order showing he has changed his name from that used while on active duty and five letters of support. 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. After having had prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 10 August 1993 at the age of 19. Following completion of advanced individual training for military occupational specialty 92Y (Unit Supply Specialist), he was assigned to a unit in Germany. 3. On or about 20 July 1994, his commander preferred court-martial charges against him for one specification each of the following offenses under the Uniform Code of Military Justice (UCMJ): * Article 78 (Accessory after the Fact) (details not available) * Article 122 (Robbery) (details not available) * Article 134 (Receiving Stolen Property) (details not available) * Article 81 (Conspiracy) in that he conspired with others to rob another Soldier, and in order to effect the conspiracy, stopped the car he was driving in front of the vehicle driven by the victim so he could be robbed and assaulted * Article 92 (Violation of a General Regulation) by wrongfully operating an unregistered vehicle without a valid license, and with license plates belonging to another individual * Article 107 (False Official Statements) by stating that he had permission to drive another Soldier's vehicle 4. His available service records contain a DA Form 4430-R (DA Report of Result of Trial) which states he was convicted by a special court-martial empowered to adjudge a bad conduct discharge on 11 August 1994. a. He was sentenced to forfeit $500 per month for 3 months, reduction to the lowest grade, confinement for 3 months, and a bad conduct discharge. There is no indication, however, that the convening authority approved the sentence. b. Four co-defendants were identified on this form. 5. His record also shows a DA Form 497 (Confinement Order) which states he was placed in confinement as a result of trial by court-martial effective 11 August 1994. 6. On 16 December 1994, the applicant consulted with counsel and was advised of the nature of his rights under the UCMJ, the elements of the offenses charged as well as any relevant lesser-included offenses, that at least one of the charges authorized the imposition of either a bad conduct or dishonorable discharge, and the facts which would have to be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty. He was also advised of the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. 7. He further acknowledged he: * was making the request of his own free and he had not been subjected to any coercion whatsoever by any person * understood by requesting discharge, he was admitting guilt to at least one of the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge * understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws 8. On 18 January 1995, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge. Accordingly, on 31 January 1995, he was discharged at Fort Dix, NJ. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service reflects he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. a. This form also shows he completed 1 year, 5 months, and 21 days of net active service this period. b. He was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. The applicant provides five letters of support, four of which are letters of appreciation, and one is a letter of recommendation. They are from Army officers ranging in rank from chief warrant officer three to lieutenant colonel, and all essentially thank the applicant for his efforts as a private contractor deployed to Iraq in support of the 173rd Airborne Brigade. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 13. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The available evidence shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 chapter 10 with an under other than honorable conditions discharge. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and his rights were fully protected throughout the separation process. 3. He provides evidence which suggests he has achieved significant accomplishments since his discharge. As important as this is, the characterization of his service is solely based on his actions during the period he was on active duty. The offenses charged included conspiracy, robbery, being an accessory after the fact, receiving stolen property, and making a false official statement. Given the seriousness of the charges he faced, an under other than honorable conditions discharge appears appropriate. 4. He notes he was young at the time of his misconduct and that he should have been given the benefit of the doubt. Records show the applicant was 19 years of age at the time of his enlistment and over 20 at the time of his offenses. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 5. Based on the foregoing, he does not appear eligible for the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X______ _X_______ __X__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150006652 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006652 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1