RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070007165 


	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

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 be upgraded.

2.  The applicant states that the conduct of First Lieutenant D___ and Colonel G___ should be acknowledged as the main cause of disciplinary action.  Both officers supplied drugs to him and were homosexual.  Both of those officers were relieved from duty.  Had he pursued a re-trial, the likelihood of receiving an honorable discharge would have been great.  However, after the Appeals Court threw out the conviction all he wanted to do was get separated as quickly as possible.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 19 November 1975.  He completed basic training and advanced individual training and was awarded military occupational specialty 16R (Short Range Air Defense Artillery Crewman).

3.  On 1 September 1976, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for going from his appointed place of duty without authority and for failing to go to his appointed place of duty.  His punishment was a reduction to pay grade E-1, a forfeiture of $84.00 pay per month for one month, and restriction for 14 days (suspended).


4.  On 12 November 1976, the suspended portion of the applicant’s punishment was vacated due to his being absent without leave (AWOL) from 8 September 1976 to 19 October 1976.

5.  On 18 January 1977, the applicant was convicted, in accordance with his pleas, by a special court-martial of being AWOL from on or about 8 September 1976 to on or about 19 October 1976; for two specifications of disobeying a lawful order from his superior commissioned officer; and for being AWOL from on or about 15 November 1976 to on or about 20 November 1976.  The convening authority approved a sentence of restriction for 30 days and performance of hard labor without confinement for 30 days, but the sentence was commuted to confinement at hard labor for 30 days.  The convening authority noted the applicant was credited with confinement from 18 January 1977 to 16 February 1977 and his sentence to confinement at hard labor had been served.

6.  On 14 April 1977, the applicant was convicted, pursuant to his pleas, by a general court-martial of conspiracy to commit larceny; three specifications of forgery with intent to defraud; four specifications of theft; and of being AWOL from on or about 4 March 1977 to on or about 15 March 1977.  The convening authority approved a sentence of a dishonorable discharge, confinement at hard labor for four years, and a forfeiture of all pay and allowances.  

7.  The applicant appealed, contending that the court-martial had no jurisdiction to prosecute him for any of the alleged charges except for the offense of AWOL.  On 23 March 1978, the U. S. Army Court of Military Review noted that, on appeal, the applicant raised this issue for the first time.  The Court found that the record of trial contained sufficient evidence upon which to decide the issue with respect to the larceny offenses.  However, as the matter was not litigated in the lower court, additional evidence was desired before it made a determination with regard to the conspiracy and forgery offenses.  The record was returned to the trial level for a limited hearing.  

8.  The convening authority apparently offered the applicant the opportunity to request discharge in lieu of having his case re-heard by a court-martial.

9.  On 30 August 1978, 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.  He understood that the charges preferred against him were:  Charge I – one specification of conspiracy to commit 

larceny; Charge 2 – three specifications of larceny of U. S currency from the Bank of America at Fort Ord, CA; and Charge 3 – AWOL from 4 March 1977 to 15 March 1977.  

10.  The applicant was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

11.  On 29 September 1978, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

12.  Headquarters, Combined Arms Center and Fort Leavenworth General Court-Martial Order Number 98, dated 29 September 1978, noted that court-martial charges against the applicant were dismissed and elimination proceedings under the provisions of Army Regulation 635-200, chapter 10 had been approved.

13.  On 29 October 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions.  He had completed 3 years, 7 months, and      22 days of creditable active service and had 110 days of lost time.

14.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

15.  Army Regulation 635-200, 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.  

16.  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 (i.e., to avoid a re-hearing), was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The U. S. Army Court of Military Review did not “throw out” the applicant’s conviction.  The Court returned it to the convening authority for a re-hearing.

3.  It appears the convening authority offered the applicant the opportunity to request discharge in lieu of a re-hearing, and he chose to request an administrative discharge.  When he made that request, he acknowledged guilt of the offenses listed in his request.  Although he may now feel that he made the wrong choice, there is insufficient evidence that would warrant granting the relief requested.  Considering his prior record of misconduct, it appears that the characterization of his discharge as under other than honorable conditions was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds____  __ecp___  __jrh___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




__Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR2007007165
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19791029
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.