BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160004151 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: 12 September 2017 DOCKET NUMBER: AR20160004151 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: 12 September 2017 DOCKET NUMBER: AR20160004151 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 an upgrade of his discharge under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states: a. He was wrongfully accused of something he did not do. He was eligible for reenlistment and had not been in any trouble. b. He was wrongfully accused of stealing and was given bad advice as to what he should do. He was told at the time that he should take the discharge UOTHC and that it would be the easiest thing for him to do. He has since learned that he was misled because he cannot receive benefits that he now needs. He is homeless and needs Department of Veterans Affairs (VA) benefits to help him get back on his feet. He is unable to find employment at this time. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 26 August 1993 for a period of 4 years. He attained the rank of specialist four effective 26 October 1995. 3. His charge sheet is not available for review; however, his request for discharge in lieu of trial by court-martial shows he was charged with: * wrongful use of cocaine * larceny * forgery 4. On 13 June 1996, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge, he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected to make a statement in his own behalf. In summary, he stated: a. He realizes his actions were wrong and he disgraced the Army, his unit, and his commander. b. He is requesting discharge for the good of his family. He stands a chance of losing his family and his family will suffer financially if he is court-martialed. 5. On 27 June 1996, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 6. On 3 July 1996, 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. He completed 2 years, 10 months, and 8 days of creditable active service. His service was characterized as UOTHC. 7. There is no indication he applied 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 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. 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 UOTHC is normally considered appropriate. b. 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's contentions that he was wrongfully accused of stealing and was given bad advice as to what he should do relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the court-martial/appellate process. 2. The evidence of record shows court-martial charges were preferred against him for using cocaine, larceny, and forgery. After consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial. In his request for discharge, he acknowledged he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He also acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He stated he realized his actions were wrong and he disgraced the Army, his unit, and his commander. 3. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 4. The type of discharge directed and the reason for discharge were in accordance with the Army policies in effect at the time of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004151 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004151 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2