IN THE CASE OF:	

		BOARD DATE:	  6 November 2008

		DOCKET NUMBER:  AR20080013283 


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, upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states that the discharge he received is not indicative of his military past or the way he has lived since his discharge.  The incident that brought about his discharge was an isolated lack of judgment.  Also, following his discharge, he has lived in a positive and productive manner.  He has a wife of 10 years, a 6-year old whom he is raising well, more than 12 years with his current employer, and he volunteers  large amounts of time with local charities to include 10 years with Big Brothers/Big Sisters and the American Cancer Society.

3.  The applicant provides no additional evidence.

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 August 1987.  He completed basic training and advanced individual training and was awarded military occupational specialty 13E (Cannon Fire Direction Specialist).

3.  The applicant's discharge packet indicates he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 16 May 1989 for failure to repair.

4.  On 6 June 1989, court-martial charges were preferred against the applicant charging him with two specifications of larceny, committed on 20 May 1989, (stealing an automated teller machine (ATM) card from a fellow Soldier and stealing $185.00 from that fellow Soldier by using the ATM card).

5.  In a sworn statement, the applicant stated that he and another Soldier were in the victim's room looking at pictures in his wallet.  The other Soldier took the victim's ATM card from his wallet and placed it in his (the applicant's) back pocket.  They then left the room and went to the Credit Union, where the other Soldier used the card to withdraw $90.00 from the victim's account.  A few minutes later they returned to the ATM machine.  That time, the other Soldier held his jacket up to block the camera and they withdrew $95.00 from the account.  When asked if he planned to take the ATM card before he went to the victim's room, the applicant responded, "Yes."

6.  On 21 June 1989, 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 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 UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

7.  On 23 June 1989, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

8.  On 7 July 1989, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with a discharge UOTHC.  He had completed 1 year, 10 months, and 19 days of creditable active service with no lost time.

9.  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 UOTHC is normally considered appropriate.  

10.  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.  

11.  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 contended that the discharge he received was not indicative of his military past; however, evidence of record shows he had accepted nonjudicial punishment for failure to repair less than one week prior to the incident that led to his discharge.

2.  The applicant's good post-service conduct is commendable.  However, it insufficiently mitigates the fact that he planned to steal, and did steal, from a fellow Soldier.

3.  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.

4.  Considering the offenses for which he was discharged, the characterization of service the applicant received was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XX____  ____XX____  ___XX_____  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)                                         AR20080013283





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ABCMR Record of Proceedings (cont)                                         AR20080013283



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