RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060012711 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 discharge be upgraded to general.

2.  The applicant states, in effect that he served honorably for 21 months but made a serious error in judgment by trying to help a friend who was in possession of stolen property.

3.  The applicant provides a copy of his Request for Chapter 10 Discharge and a letter of support from his employer. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 April 1986, the date of his discharge.  The application submitted in this case is dated 5 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 18 July 1984, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 95B1O (Military Policeman).

4.  On 21 February 1986, court-martial charges were preferred under the Uniform Code of Military Justice for violation of Article 92 for being derelict in his duties by willfully failing to report information to his superiors that he had gained during an investigation of larcenies.  He was also charged with violation of Article 134 for intent to prevent seizure of stolen property, for advising another person to wrongfully dispose of stolen property, and for willfully making a false statement under oath.



5.  On  4 March 1986, the applicant 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 under other than honorable conditions discharge, and of the procedures and rights that were 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. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to 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, that he could 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 law.   

7.  On 7 April 1986, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

8.  On 17 April 1986, the applicant was discharged accordingly.  He had completed a total of 1 year and 9 months of creditable active military service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 134, for false swearing and disposal of property to prevent seizure is a dishonorable discharge and confinement for 1 year.


12.  The letter of support provided by the applicant's employer states that he has been valuable employee for 8 years, has held multiple positions within the company, and is currently a supervisor.  His employer further states that the applicant always acts with responsibility in his position, and is accountable for his personal and professional life.

DISCUSSION AND CONCLUSIONS:

1.  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 defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

2.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

3.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate the seriousness of his misconduct.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.





__       William F. Crain____
          CHAIRPERSON




INDEX

CASE ID
AR20060012711
SUFFIX

RECON
 
DATE BOARDED
20070308
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19860417
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.