RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060015272 


	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.


x

	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 undesirable discharge (UD) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that when he entered into the military he was just 17 years old, and was very proud to enlist in the Army.  He states that his military occupation was a cook and that he learned a lot during his time on active duty.  He also states that he is 50 years old now and realizes he made a bad decision when he took something that did not belong to him.  He claims that he had family issues at the time.  His father was very ill and dying from lung cancer and actually died that year from a brain tumor.  He also claims he is very sorry for what he did.  He further states that he is currently very successful in that he is a director of operations for over 8 Olive Garden Restaurants and has been employed with them for over 17 years.  He now requests that his discharge be upgraded to an HD. 

3.  The applicant provides a Self-Authored Statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 7 March 1974, the date of his separation.  The application submitted in this case is dated 18 October 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.  The applicant’s record shows he enlisted into the Regular Army and entered active duty on 28 February 1973.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist), and the highest rank he attained while serving on active duty was private/E-2 (PV2).  His record documents no acts of valor, significant achievement or service warranting special recognition.  

4.  On 26 January 1974, a Military Police Report (DA Form 3975) was completed on the applicant for suspicion of larceny.  The investigation disclosed that the applicant committed the offense of larceny by falsely claiming he had purchased a black leather jacket from the Post Exchange (PX) on 22 January 1974, when presenting this item to the Customer service section of the PX for a refund, and received a refund in the amount of $44.50.  After being advised of his rights, the applicant submitted a written statement admitting that he had not purchased the jacket and received the refund under false pretenses because he was broke and needed the money.

5.  On 12 February 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the 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. 

6.  In his request for discharge, the applicant acknowledged that 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.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD and that he would be submitting a statement on his own behalf.  

7.  In his statement, the applicant indicated that he understood that if he remained in the military he would face a trial by court-martial for a charge of larceny, and although he may have received a general, under honorable conditions discharge (GD), he felt he should be separated under the provisions of Chapter 10.  He also stated that he felt that without the charge of larceny he would be able to start out new in civilian life.  He further stated that he felt that if he did not separate from the military he would get himself in more trouble and go absent without leave (AWOL).

8.  On 27 February 1974, the separation authority approved the applicant’s request for discharge, and directed that he receive an UD.  On 7 March 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time, he had completed a total of 4 months and 5 days of creditable active military service and had accrued 132 days of lost time.

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

10.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and had some family problems at the time of his misconduct was carefully considered.  However, these factors are not sufficiently mitigating to warrant granting the requested relief. 

2.  By regulation, an UD discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, the applicant's record is void of any acts of valor, significant achievement, or service warranting special recognition that would have supported anything other than an UD at the time or that would support an upgrade of his discharge at this time. 

3.  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 in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UD, which was consistent with regulatory policy.  


5.  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.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 March 1974, the date of his discharge.  Therefore, the time for him to file a request for correction of any error or injustice expired on 6 March 1977.  He did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x  ___  __x __  _x      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.




_____x _________
          CHAIRPERSON



INDEX

CASE ID
AR20060015272
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/19
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1974/03/07
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.