RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         10 November 2005
      DOCKET NUMBER:  AR20050005426


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
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 a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he only accepted his discharge
under Chapter 10 after being told if he did not take the discharge, he
would go to jail. He claims he submitted a hand-written statement denying
guilt of the theft, and indicating he had secured the items in question.
He further states it is his belief his sworn statement was altered because
the one on file was typed and his was hand-written.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 June 2001.  The application submitted in this case is
dated
17 March 2005.  The applicant’s case was considered by the Army Discharge
Review Board (ADRB) on 14 February 2003.  Therefore, the 3-year statute of
limitations is not applicable in this case.

2.  The applicant’s record shows he enlisted in the Army and entered active
duty on 25 October 1994.  He was trained in, awarded, and served in
military occupational specialty (MOS) 95B (Military Police).  His record
confirms the highest rank he attained while serving on active duty was
sergeant (SGT).

3. On 9 May 2001, a Charge Sheet (DD Form 458) was prepared preferring two
court-martial charges against the applicant for violating Articles 107 and
121 of the Uniform Code of Military Justice (UCMJ).  Charge I was one
specifications of violating Article 107 by making a false statement.
Charge II was for violating Article 121 by stealing a DVD player valued at
about $250.00.

4.  The applicant’s records show that on 14 May 2001, he consulted with
legal counsel 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 of the procedures and
rights available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial, under the provisions of chapter 10, Army
Regulation 635-200.

5.  In his request for discharge, the applicant confirmed he was making the
request of his own free will and he acknowledged that he was guilty of at
least one of the charges against him, or of at least one lesser included
offense therein contained that also authorized the imposition of a bad
conduct or dishonorable discharge.

6.  The applicant also acknowledged his understanding that could be
furnished an UOTHC discharge, that he could be deprived of many or all Army
benefits, that he could be ineligible for many or all benefits administered
by the Department of Veterans Affairs (VA) and of his rights and benefits
as a veteran under both Federal and State law.  He further acknowledged
that he understood he could expect to encounter substantial prejudice in
civilian life because of the UOTHC discharge.  Both the applicant and his
legal counsel authenticated this document with their signatures.

7.  On 21 May 2001, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest
enlisted grade, and that he receive an UOTHC discharge.  On 12 June 2001,
the applicant was discharged accordingly.  The DD Form 214 he was issued
confirms the authority for his separation was chapter 10, Army Regulation
635-200, and that the reason for his separation was misconduct (for the
good of service-in lieu of
court-martial).

8.  On 14 February 2003, the Army Discharge Review Board, after careful
review of military records and all available evidence, determined his
discharge was proper and equitable and denied the applicant's petition to
upgrade his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
An UOTHC discharge is normally considered appropriate for members separated
under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he only requested to be discharged
under Chapter 10 after being told to accept the discharge or go to jail and
that his sworn statement was altered were carefully considered.  However,
there is insufficient evidence to support these claims.
2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  The record shows all
requirements of law and regulation were met and the applicant’s rights were
fully protected throughout the separation process. The applicant and his
legal counsel authenticated his discharge request with their signatures.
In effect, this was their verification the information it contained was
correct at the time.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP_  __LDS __  ___MJF  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____Margaret K. Patterson____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005426                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-10                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2001/06/12D                             |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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