IN THE CASE OF: BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017583 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: 18 April 2017 DOCKET NUMBER: AR20150017583 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: 18 April 2017 DOCKET NUMBER: AR20150017583 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 was told by the U.S. Army Criminal Investigation Command (CID) that his discharge would be upgraded, and that he would receive an honorable discharge. 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 19 November 1986. He completed his initial entry training and was awarded military occupational specialty (MOS) 51R (Interior Electrician). Following the completion of his initial entry training, he was reassigned to Company C, 34th Engineer Battalion, Fort Polk, LA. 3. A DA Form 458 (Charge Sheet), dated 24 January 1989, shows court-martial charges were preferred against the applicant for wrongfully distributing marijuana on or about 12 September 1988. 4. The applicant consulted with legal counsel on 31 January 1989 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 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. 5. 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 an under other than honorable conditions 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. 6. The applicant submitted a statement on 31 January 1989, with his request for discharge. His states: a. In his life, being as young as he is, he is glad to be able to find that crime does not pay. He found that when he does wrong, God does not let him slide by. He has done wrong and has been punished for that wrong. He has lost his dream and the chance to serve his country the way his father and grandfathers before him, and he nearly lost his beautiful wife. He has brought disgrace to his family and himself. b. He has learned from his mistakes. When he's wrong, he's wrong. There's only one way to make up for it, by telling the truth and helping the law to get drugs off America's streets. He helped CID in many ways. He has helped in the apprehension of a distributor of marijuana and he helped in other operations as well. c. This one time incident has destroyed his life. His goal now is to help others avoid destroying theirs, and to help his government in catching more distributors so they can't ruin others' lives in the web of deceit they weave. 7. The separation authority approved the applicant's request for separation in lieu of court-martial on 2 February 1989, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate. 8. The applicant was discharged on 21 February 1989. 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 character of service was under other than honorable conditions. He served for 2 years, 3 months and 3 days. 9. There is no evidence within the applicant's record that shows CID or another Army agency offered him an honorable discharge. 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 enlisted in the Regular Army at 18 years of age. At the age of 20, he was charged with the commission of an offense 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. 2. The applicant provided the separation authority a statement with his request for separation in which he stated he helped CID in many ways. He contends CID told him his discharge would be upgraded to honorable. However, there is no evidence within his record showing CID or another Army agency offered him an honorable discharge for his cooperation. 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. His discharge accurately reflects his overall record of service and the characterization of service he received was commensurate with the reason for his discharge. 5. Based on the applicant's record of indiscipline, which included a violation 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, his service appears to not meet the standards of acceptable conduct and performance of duty for Army personnel. //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) AR20150017583 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2