IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150012431 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: 26 July 2016 DOCKET NUMBER: AR20150012431 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: 26 July 2016 DOCKET NUMBER: AR20150012431 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 upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect: * his first 4 years and 7 months of service should be favorably considered * during this period he was the Soldier of the Year for his unit, and successfully completed both the Primary Leadership Development Course and Basic Noncommissioned Officer Course (BNCOC) * he was also awarded the Humanitarian Service Medal, Army Good Conduct Medal, Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, and the NCO Professional Development Ribbon * he has been an outstanding citizen and volunteered locally with the Red Cross; he has been a devoted member of his church 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 March 1993. 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 1 July 1987. He continuously served and rose to the rank/grade of sergeant/E-5. 3. Between August 1992 and October 1992, while stationed at Fort Ord, CA, he was alleged to have falsified college transcripts and an Associate's Degree diploma. He then allegedly submitted these documents for inclusion in his promotion packet for staff sergeant/E-6. 4. In a separate action, on 24 November 1992, his commander initiated a bar to reenlistment. The commander's basis was the applicant's failure to follow instructions and for going on an unauthorized pass. He also had failed to settle debts with a German phone company. His battalion commander approved the bar on 30 November 1992. 5. On 25 November 1992, his commander preferred court-martial charges against him for falsifying and signing an official document, willfully and unlawfully altering a public record, and making a false sworn statement. 6. On 25 February 1993, he consulted with counsel, a Judge Advocate General officer, and counsel advised him of the: * nature of his rights under the Uniform Code of Military Justice * elements of the offenses charged, as well as any relevant lesser included offenses * facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty * possible defenses available * maximum permissible punishment if found guilty 7. 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 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). In making his request, he further acknowledged he: * was making the request of his own free will 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 VA * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit statements in his own behalf 8. On 3 March 1993, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions discharge. The separation authority additionally directed the applicant's reduction to the lowest enlisted rank/grade (private/E-1). The applicant was discharged accordingly on 15 March 1993. 9. His DD Form 214 reflects he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. It also shows he completed 5 years, 8 months and 15 days of net active service this period. He was awarded or authorized: * Army Commendation Medal (1st Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Humanitarian Service Ribbon (Operation Firebreak) * NCO Professional Development Ribbon (2nd Award) * Army Service Ribbon * Army Overseas Ribbon * Air Assault Badge * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar * Driver and Mechanic Badge with Driver-Wheeled Vehicle Bar 10. On 18 May 1994, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. After considering his case, the ADRB determined he had been properly and equitably discharged. His request for upgrade was denied. REFERENCES: AR 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. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a states 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 states 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 requests upgrade of his under other than honorable discharge. 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 AR 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. The applicant asserts his duty performance during the first 4 years and 7 months of his term of service was outstanding. Additionally, he contends his post-service accomplishments and the fact he has volunteered with the Red Cross have sufficient merit to overcome the basis for his under other than honorable conditions discharge. a. While significant, the characterization of service focuses exclusively on the period of active service. In this respect, the evidence of record supports he faced court-martial charges which were serious enough to warrant a bad conduct or dishonorable discharge. b. The applicant's acts of personal misconduct clearly established the basis for his separation as an NCO. This misconduct rendered his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012431 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012431 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2