IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080008367 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant essentially states that he was told that he was receiving a general discharge.  He also states that he got into trouble for writing bad checks in Germany, was court-martialed, and was being sent back to the United States with a choice of going to prison or going through the Retraining Brigade at Fort Riley, Kansas.  He further states that he chose the latter, completed retraining, and was given a chance to finish his enlistment.  He continued by essentially stating that by completing his retraining, he was given two choices for his next duty station so he picked Fort Detrick and Fort Meade, Maryland.  He was further promised that he would be sent to one of those places.  However, he states that instead, orders reassigned him to Fort Rucker, Alabama and that he went there, but was not happy.  He also states that he told his commanding officer about this situation but nothing was ever done and that he went absent without leave (AWOL) and went home to Baltimore, Maryland.  Additionally, he essentially states that after returning to military control he was told he could either go back to Fort Rucker or get discharged, and that he chose to be discharged.  Further, he states that he was always under the impression that his discharge was a general discharge, not an under other than honorable conditions discharge.




3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); DA Form 2-1 (Personnel Qualification Record – Part II); a two-page 
VA Form 21-4138 (Statement in Support of Claim), dated 21 December 2007; an 
undated and unauthenticated endorsement stating that he would be furnished a General Discharge Certificate; and a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) in support of this application.

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's military records show that he enlisted in the Regular Army on 17 September 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  However, prior to completing advanced individual training the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $97.00 pay per month for 1 month, restriction for 7 days, and extra duty for 7 days.  He then departed for reassignment to Germany on 21 February 1977.

3.  On 19 July 1978, the applicant was convicted by a special court-martial of twelve counts of wrongfully and unlawfully making and delivering checks, then knowing that he did not or would not have sufficient funds to cover the checks; and one count of stealing a check from the checkbook of another Soldier.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $260.00 pay per month for 6 months, and to be reduced from private first class (PFC)/E-3 to private (PV1)/E-1.  On 17 August 1978, only so much of the applicant's sentence as provided for confinement at hard labor for 3 months, forfeiture of $198.00 pay per month for 3 months, and reduction from PFC to PV1 was 


approved and ordered to be duly executed.  Initially confined at the Army Confinement Facility in Mannheim, Germany, the applicant was transferred to the United States Army Retraining Brigade at Fort Riley to resume his sentence to confinement.  Subsequently, on 17 August 1978, the unexecuted portion of the applicant's sentence to confinement at hard labor was suspended until
13 December 1978, at which time it would be remitted without further action.  On 4 October 1978, the unexecuted portion of the applicant's sentence to forfeiture of $198.00 pay per month for 3 months was suspended until 13 December 1978, at which time it would be remitted without further action.  The applicant was then reassigned to Fort Rucker, Alabama.

4.  On 26 October 1978, the applicant went AWOL.  On 25 November 1978, he was dropped from the rolls of the Army and classified as a deserter.  He remained in this status until he surrendered to military authorities on 3 December 1978.

5.  On 8 December 1978, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about
26 October 1978 and remaining so absent until on or about 3 December 1978, an offense punishable under the UCMJ with a punitive discharge.  

6.  On 8 December 1978, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.

7.  In his request for discharge, the applicant also acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any 


relevant less included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He further acknowledged that although counsel had furnished him legal advice, this decision was his own.

8.  The applicant also understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant elected not to submit statements in his own behalf.  

9.  On 1 February 1979, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  He also directed that the applicant be reduced to the lowest enlisted grade.  In a letter, dated 1 February 1979, the applicant was informed that he was separated in absentia.  His DD Form 214 shows that he was discharged under other than honorable conditions.

10.  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.

11.  The applicant essentially stated that he was told that he was receiving a general discharge.  He also stated that he got into trouble for writing bad checks in Germany, was court-martialed and sent back to the United States, and was offered the choice of going to prison or going through the Retraining Brigade at Fort Riley.  He further stated that he chose the latter, completed retraining, and was given a chance to finish his enlistment.  He continued by essentially stating that by completing his retraining, he was given two choices for his next duty station, and that he picked Fort Detrick and Fort Meade.  He was promised that he would be sent to one of those places.  However, he stated that instead, orders reassigned him to Fort Rucker and that he went there, but was not happy.  He 


also stated that he told his commanding officer about this situation but nothing was ever done, and that he went AWOL and went home to Baltimore.  Additionally, he stated that after returning to military control, he was told he could either go back to Fort Rucker or get discharged, and that he chose to be discharged.  Further, he stated that he was always under the impression that his discharge was a general discharge, not a discharge under other than honorable conditions.

12.  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 trail by court-martial.  At the time, a discharge under other than honorable conditions was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge.

13.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The applicant's contention that he was promised an assignment to either Fort Detrick or Fort Meade after his retraining was considered, but not found to have any merit.  There is no evidence in the applicant's military records and the applicant failed to provide any evidence to support his contention.


3.  The fact that the applicant provided an undated and unauthenticated endorsement stating that he would be furnished a General Discharge was noted, as was his claim that he was always under the impression that he received a general discharge.  However, a copy of the undated and unauthenticated endorsement was present with his separation packet, and it is clear that the personnel office that prepared his separation packet merely forwarded correspondence to the separation authority to allow him the choice to direct either a discharge under other than honorable conditions or a general discharge. The evidence of record clearly shows that the separation authority directed that he be discharged under other than honorable conditions on 1 February 1979.

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 this requirement.

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  Based on the applicant's record of indiscipline, which included accepting NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty, conviction by a special court-martial for 12 counts of cashing bad checks and one count of stealing a check from the checkbook of another Soldier, and absenting himself without authority from his unit, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  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.



      _______XXX______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008367



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ABCMR Record of Proceedings (cont)                                         AR20080008367



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