IN THE CASE OF: BOARD DATE: 25 April 2017 DOCKET NUMBER: AR20150018964 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: 25 April 2017 DOCKET NUMBER: AR20150018964 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: 25 April 2017 DOCKET NUMBER: AR20150018964 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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 2. The applicant, in effect, states he deeply regrets the offenses he committed. When he came back from the "gulf war" he was not the same person, as it caused him marital and drinking problems. He panicked when he was pulled over by the military police and he fled. He took the UOTHC discharge for fear of losing his children. 3. The applicant provides a self-authored statement and a Standard Form 180 (Request Pertaining to Military Records), dated 1 September 2015. 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 February 1982. 3. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 15 March 1994 for the following charges and specifications in violation of the Uniform Code of Military Justice (UCMJ): a. For violating Article 91 of the UCMJ; specifically, for conducting himself in an insubordinate manner toward [four] noncommissioned officers, on or about 19 February 1994. b. For violating Article 92 of the UCMJ; specifically, for failing to obey a lawful order issued by his First Sergeant, to wit: take a blood alcohol breathalyzer test, on or about 19 February 1994. c. For violating Article 95 of the UCMJ; specifically, for resisting apprehension by the military police, on or about 19 February 1994. d. For violating Article 111 of the UCMJ; specifically, for driving while drunk and for reckless driving, to wit: operating a vehicle while drunk at the Britten Elementary parking lot; and operating a vehicle while drunk on Fort Stewart, GA in a reckless manner by failing to stop at a stop sign, driving on the sidewalk, driving between housing, driving in the wrong lane, and forcing other vehicles off the road while driving, on or about 19 February 1994. e. For violating Article 117 of the UCMJ; specifically, for wrongfully using provoking words to his First Sergeant and four other noncommissioned officers, on or about 19 February 1994. f. For violating Article 128 of the UCMJ; specifically, for assaulting a military policeman in the performance of his duties, on or about 19 February 1994. g. For violating Article 134 of the UCMJ; specifically, for conducting himself in a drunk and disorderly manner of such a nature as to bring discredit upon the armed forces; for wrongfully communicating a threat to injure a fellow Soldier; and for wrongfully possessing an open container of an alcoholic beverage while operating a motor vehicle, on or about 19 February 1994. 4. On 15 March 1994, the applicant's intermediate and brigade commander, by memoranda to the convening authority, recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge and a general court-marital, respectively. 5. On 22 March 1994 and 4 April 1994, the brigade-level commander appointed an Article 32(b) investigator to conduct an impartial inquiry into the charges and to make a recommendation as to the disposition of the charges. The results of this investigation is not available for review. 6. The applicant consulted with legal counsel on or about 4 April 1994, and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 7. In his request for discharge, he acknowledged: a. He understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and he would be furnished an UOTHC Discharge Certificate and would be administratively reduced to the grade of private/E-1. b. He had not been subjected to coercion with respect to his request for discharge and he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. b. He had been advised of the possible effect of an under other than honorable conditions discharge and he 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He indicated he waived a separation medical examination and mental health evaluation. He also indicated he understood he could elect or decline to submit statements on his own behalf and elected to provide a statement to the separation authority. He elected this statement through his counsel. 8. On 4 April 1994, through his counsel, the applicant submitted a statement to the separation authority requesting a "General Discharge." He stated he had 12 years of faithful service and he had served overseas and in Operation Desert Shield/Storm. He acknowledged that he made a serious mistake and his career was over, but as the parent of five girls, four of which he was the sole parent for, he pleaded that having a UOTHC discharge would create great difficulty in obtaining a civilian job to support his children. 9. On 4 April 1994, his immediate commander recommended a general discharge based on his past duty performance and his status as a single parent. 10. On April 1994, his intermediate commander recommended disapproval of the applicant's request for discharge under the provisions of Army Regulation 635-200, Chapter 10. The commander cited the following: * the applicant brought great discredit upon the Army and deserved to be tried by court-martial * this was the second driving under the influence (DUI) offense; as the command gave him the benefit of the doubt after the first offense (28 July 1989) by suspending all of his punishment * he was also charged with offenses of disrespect and provoking speech; which imply deeply ingrained prejudices that could not be tolerated * his actions did not meet the standards of an NCO and a concerned parent 11. On or about 4 April 1994, the brigade commander recommended approval of the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10; he recommended the applicant receive a UOTHC discharge. 12. On 13 April 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and discharged UOTHC. 13. On 22 April 1994, the applicant was discharged accordingly. 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, for the good of the service in lieu of trial by court-martial and his service was characterized as UOTHC. He completed 12 years, 2 months, and 22 days of net active service. 14. 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: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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 for a Soldier 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The evidence of record shows the applicant, while serving as a noncommissioned officer, had multiple offenses that were punishable under the UCMJ with a punitive discharge, including insubordinate conduct toward noncommissioned officers; failure to obey a lawful order; resisting apprehension; drunken and reckless driving; wrongfully using provoking words; assaulting a military policeman; drunk and disorderly; wrongfully communicating a threat; wrongfully possessing an open container of an alcoholic beverage while operating a motor vehicle. Additionally, it was pointed out by his intermediate commander, he had a previous DUI in which his command took into consideration his service and suspended his punishment. After consulting with legal counsel, he voluntarily requested discharge in order to avoid trial by court-martial and the potential punitive discharge. By requesting discharge, he admitted he was guilty of the charges. 2. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. The characterization of service he received was commensurate with the reason for his discharge. 3. An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. Based on the seriousness of his offenses, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, and that he was a noncommissioned officer, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018964 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018964 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2