RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20070000385


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |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 that his discharge under other than honorable
conditions (UOTHC) be upgraded to a general discharge under honorable
conditions.

2.  The applicant states he would like his discharge upgraded for civilian
employment purposes.  He believes he has been a good citizen and would like
to correct the one error in judgment he had during his two enlistments.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 October 1990.  The application submitted in this case is
dated                  26 December 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 initially served in the Regular Army from 6 November 1985
until he was honorably released from active duty on 2 December 1988.

4.  The applicant enlisted in the Regular Army on 31 January 1989 in the
rank of Specialist, E-4.

5.  A U. S. Army Criminal Investigation Command Report of Investigation
revealed that the applicant, Specialist O___, and one other Soldier were
involved in the theft of live fragmentation grenades while performing
duties at the Fort Lewis, WA grenade range.  Specialist O___ (who had been
transferred to Fort Bragg, NC prior to the discovery of the theft, having
transported one live grenade from Fort Lewis to Fort Bragg in the back of a
Ryder rental truck) admitted to obtaining two grenades from the other
Soldier, selling one to the applicant, and keeping one for himself.  The
theft was reported on 29 August 1990, when the applicant’s wife went to the
applicant’s commander to discuss an unrelated incident concerning the
applicant.  She informed the applicant’s commander that he had a grenade in
their residence and she was concerned about the safety of her children.
The applicant at first stored the grenade in their home’s attic.  When it
became too hot in the attic, he placed it in their bedroom.  Earlier in the
day their three-year old daughter found the grenade in their bedroom and it
was then the applicant’s wife felt the matter was too serious to ignore.

6.  On 18 September 1990, court-martial charges were preferred against the
applicant charging him with wrongfully receiving a live fragmentation
grenade, knowing or having reasonable cause to believe that such an
explosive material was stolen.

7.  On 1 October 1990, the installation Staff Judge Advocate submitted a
memorandum to the Commander, 9th Infantry Division, Fort Lewis, WA
recommending the applicant’s case be referred to a special court-martial
empowered to adjudge a bad conduct discharge.  The memorandum indicated
that the applicant’s character of service was “Outstanding.”

8.  On 1 October 1990, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
  635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  He acknowledged that he was making the request of his own free
will and had not been subjected to any coercion whatsoever by any person.
He acknowledged that by submitting the request for discharge that he was
guilty of the charge(s) against him or lesser included offenses(s)
contained therein which also authorized the imposition of a bad conduct or
dishonorable discharge.  He was advised of the effects of a discharge UOTHC
and that he might be deprived of many or all Army and Veterans
Administration benefits.  He elected not to submit a statement in his own
behalf.

9.  On 4 October 1990, the appropriate authority approved the request and
directed the applicant receive a discharge UOTHC.

10.  On 15 October 1990, the applicant was discharged with a UOTHC, in pay
grade E-1, under the provisions of Army Regulation 635-200, chapter 10,
discharge in lieu of trial by court-martial.  He had completed a total of 3
years,
9 months, and 12 days of creditable active service and had no lost time.

11.  Specialist O___ accepted nonjudicial punishment under Article 15,
Uniform Code of Military Justice from his Fort Bragg, NC command for the
incident and is currently serving in the Regular Army as a Master Sergeant,
E-8.


12.  On 1 February 1991, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.  He contended, in part, that
his discharge was inequitable since he and another Soldier were charged
with the same offense and the other Soldier only received an Article 15
while he was recommended for a special court-martial.  On 2 December 1992,
the ADRB denied his request.  The ADRB noted, in part, that the record did
not support his contention and he did not submit any evidence to support
his contention that his command acted in an unfair manner in administering
his case.  The ADRB also noted that each separation case is considered on
its own merits and therefore the alleged different handling of another case
had no bearing on the propriety or equity of the discharge proceedings in
the applicant’s case.

13.  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
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.
A discharge UOTHC is normally considered appropriate.

14.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  It appears that at the time the ADRB considered the applicant’s request
for upgrade of his discharge the ADRB may not have been aware (except for
the applicant’s allegation) that Specialist O___ received only nonjudicial
punishment for the same offense for which the applicant was recommended for
referral to a special court-martial empowered to adjudge a bad conduct
discharge.

3.  It is noted that the ADRB also stated that each separation case is
considered on its own merits and therefore the alleged different handling
of another case had no bearing on the propriety or equity of the discharge
proceedings in the applicant’s case.  While the ADRB’s statement is true,
this Board also recognizes that these were not two “separate” cases.  The
applicant and Specialist O___ were involved in the same incident.  The
applicant was charged only with one offense:  wrongfully receiving stolen
property, a live fragmentation grenade.  Since he bought it from Specialist
O___, who in turn bought it from the third Soldier involved, the clear
inference is that Specialist O___ could have been charged with two
offenses:  wrongfully receiving stolen property and wrongfully selling
stolen property.

4.  The only difference in the two cases appears to have been that the
applicant was under the jurisdiction of authorities at Fort Lewis, WA while
Specialist O___, after his transfer to Fort Bragg, was under the
jurisdiction of authorities at Fort Bragg, NC.  It cannot be determined
what, if any, recommendation the Fort Lewis authorities may have forwarded
to Fort Bragg.  In any case, the fact remains that Specialist O___ was
administered nonjudicial punishment and continues to serve in the Regular
Army to this date.

5.  An argument could be made that the applicant’s case was different from
Specialist O___’s in that the applicant endangered his young child by
keeping the live grenade where it was readily accessible to his child
(which is what brought the misconduct to his commander’s attention in the
first place).  However, the applicant was not charged with child
endangerment.  Misconduct for which he was not charged should not be
considered in determining the type of punishment (or the characterization
of service) he should have received.  Further, an argument could be made
that Specialist O___ also endangered civilians, probably including young
children, by transporting a live grenade cross-country in a rental truck.

6.  It is also noted that the applicant had no other record of disciplinary
actions in his records, and the installation Staff Judge Advocate had noted
that his character of service was “Outstanding”.

7.  Although the misconduct for which the applicant was properly separated
cannot be condoned (and for which his separation was not improper
regardless of the resolution of Specialist O___’s misconduct in the same
incident), it appears it would now be equitable to upgrade his discharge
UOTHC to a general discharge under honorable conditions.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 December 1992, the date the ADRB
reviewed his case; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 1 December 1995.  The
applicant did not file within the 3-year statute of limitations; however,
based on the available evidence and argument (as expressed in his
application to the ADRB), it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

__lds___  __jlp___  __jgh___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by issuing to him a new DD Form 214
reflecting he was discharged with a general discharge under honorable
conditions on 15 October 1990.




                            __Linda D. Simmons____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000385                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19901015                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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