ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160017224


APPLICANT REQUESTS:  In effect, that:

* his characterization of service be changed from under other than honorable conditions (UOTHC) to uncharacterized 
* his reason for separation be changed from in lieu of trial by court-martial to entry level separation

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant enlisted in the Regular Army on 2 March 1993.

3.  Court-martial charges were preferred against the applicant on 16 January 1997.  His DD Form 458 (Charge Sheet) indicates he was charged with being absent without leave (AWOL) during two separate periods: from on or about 16 December 1996 through on or about 29 December 1996; and from on or about 3 through on or about 13 January 1997.

4.  The applicant consulted with legal counsel on 16 January 1997.

	a.  He 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.  
	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He waived his right to submit a statement in his own behalf.

5.  The appropriate authority approved the applicant's request for discharge on 27 March 1997, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, directed that the applicant be reduced to the lowest enlisted grade, and directed that he be discharged UOTHC.

6.  The applicant was discharged on 31 December 24 April 1997.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and his service characterization was UOTHC.  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1.

7.  The applicant was not in an entry level status when charged with the commission of offenses punishable under the UCMJ for which a punitive discharge was authorized.  Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board concluded that the applicant failed to provide any mitigating factors for the misconduct which would result in considering a possible discharge upgrade; for that reason, the Board recommended denying the request of the applicant.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.





REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Chapter 10 provides, in pertinent part, 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.

	d.  Chapter 11 provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort, or a failure to adapt to the military environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

3.  The Manual for Courts-Martial, Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for periods of AWOL of more than 30 days.


ABCMR Record of Proceedings (cont)	 AR20160017224
0

3


1