BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018289 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: 4 May 2017 DOCKET NUMBER: AR20150018289 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: 4 May 2017 DOCKET NUMBER: AR20150018289 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 to upgrade his under other than honorable discharge to honorable. 2. The applicant states, in effect, he was unaware of the consequences of his decision to accept separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). a. He was young and fell in with the wrong crowd. He believes, because of his association with this group, his chain of command incorrectly thought he was involved in their criminal wrongdoing (distributing marijuana); this was not the case. b. He had entered the Army with high hopes and aspirations to protect his country and see the world. Unfortunately, he made some bad choices and did not listen to his leaders. c. The only reason he accepted the discharge was because he was homesick; he did not really understand what he was signing. He was not convicted of any crime, but because he accepted the discharge, he essentially gave away his benefits. If he could go back and change this part of his life, he would. He points out he has been a good citizen since he left the Army. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 July 1991. 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 5 April 1989 at age 18. He held military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). Following initial training, he was assigned to Fort Richardson, AK. 3. On 3 May 1991, his commander at Fort Richardson preferred court-martial charges against him for one specification of distributing marijuana. 4. On 29 June 1991, the applicant consulted with counsel (a military lawyer) and was advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ), as well as the elements of the offenses charged, and any relevant lesser-included offenses. He was told that at least one of the charges authorized the imposition of either a bad conduct or dishonorable discharge and that the evidence had established guilt beyond a reasonable doubt. He was further 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, AR 635-200. 5. 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 Veterans Administration (later renamed the Department of Veterans Affairs) * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws 6. On 19 July 1991, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions discharge. He was discharged accordingly on 25 July 1991. 7. 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 2 years, 3 months and 21 days of net active service this period. He was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 8. 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. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 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. DISCUSSION: 1. 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 based on 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 that his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 2. He notes he was young and immature. Records show the applicant was 18 years of age at the time of his enlistment, and 20 when he was charged with distributing marijuana. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. Additionally, post-service conduct is not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018289 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018289 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2