IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160008586 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 14 June 2018 DOCKET NUMBER: AR20160008586 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 under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect, he would like his under other than honorable conditions discharge upgraded to an honorable discharge. 3. The applicant provides a letter from the Department of Veterans Affairs (VA). 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 24 January 2008. He held military occupational specialty 31B (Military Police (MP)). He served in stateside and overseas assignments to include Korea and Iraq. At the time of his separation, he was assigned to the 55th MP Company, Combat Support, Camp Casey, Republic of Korea. He arrived on or about 12 July 2013. 3. On 1 September 2013, the applicant’s immediate commander formally counseled him notifying him of his intent to separate him from the U.S. Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12b, patterns of misconduct. 4. On 15 October 2013: a. DD Form 458 (Charge Sheet) was prepared by the commander, 55th MP Company, 94th MP Battalion, 501st Sustainment Brigade. The applicant was charged with the following: * one specification of attempting to gain access to a U.S. military installation using Mr. ES’s Department of Defense (DOD) identification and privilege card * two specifications of willfully disobeying a lawful command from a superior commissioned officer * eight specifications of failing to obey a lawful order * one specification of assault * one specification of being drunk and disorderly * one specification of wrongfully soliciting Mr. ES to violate Article 134 (false or unauthorized pass offenses) by providing his DOD identification and privilege card so the accused could gain access to a U.S. military installation * one specification of wrongfully possessing with intent to deceive an instrument purporting to be a DOD identification and privilege card b. The applicant’s immediate commander, having reviewed the charges and supporting documents, recommended to the commander, 94th MP Battalion, 501st Sustainment Brigade, the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge. The intermediate and senior commanders concurred with the recommendation. 5. On 15 October 2003, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, the applicant indicated: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he did not desire further rehabilitation and he had no desire to perform further military service * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he understood if the discharge request was approved he could be discharged under other than honorable conditions * he may be ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he elected not to submit a statement on his own behalf 6. On 30 October 2013, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10, and directed issuance of an under other than honorable conditions discharge. On 16 November 2013, the applicant was discharged accordingly. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service. His DD Form 214 also shows he completed 5 years, 9 months, and 17 days of active creditable service with 1 year, 4 months, and 18 days of foreign service. It also shows in: a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Iraq Campaign Medal with one bronze service star * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge * Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp b. Item 18 (Remarks), the entries "Continuous Honorable Active Service 20080124-20121009" and "Immediate Reenlistments This Period: 20080124- 20121009, 20121010-20131116” 8. On 13 June 2014, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge to an honorable discharge. On 3 June 2015, the ADRB, after careful review of his application, military records, and all other available evidence, determined he was properly and equitably discharged. 8. The applicant provides a letter, dated 15 April 2016, from the Department of Veterans Affairs that states he is receiving 60 percent service connected disability compensation. The document does not provide any further information regarding conditions or diagnoses. REFERENCE: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. 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. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests 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 were met, and his rights were fully protected throughout the separation process. 2. Based on his record of indiscipline, the separation authority determined the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The separation authority further determined the applicant's service did not rise to the level required for an honorable or a general characterization of service. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008586 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008586 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2