IN THE CASE OF:	  

	BOARD DATE:	  4 November 2008

	DOCKET NUMBER:  AR20080013767 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that when he was discharged he thought he could make it on his own.  He tried, but his discharge kept him from getting the real good jobs.  He contends that he did not know what he was doing or signing at the time of his discharge.  He had nothing to do with stealing a monitor or robbing the two men in the restroom.  

3.  The applicant provides three letters of support from his employer, caseworker, and chaplain.

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.  On 29 July 1974, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 76P (Stock Control and Accountability Specialist).

3.  On 15 December 1974, the applicant was assigned to the Federal Republic of Germany for duty as a repair parts specialist with the 14th Aviation Company.

4.  On 18 October 1975, a German man reported that the applicant, along with another individual, robbed him of German currency equivalent to about $30.00 and his wristwatch, value undetermined.  A DA Form 2800 (Criminal Investigative Division (CID) Report of Investigation), dated 30 October 1975, indicates that the incident was substantiated by a German police report.  There is no further evidence of record, regarding this incident, available for review.

5.  On 4 December 1975, the applicant was apprehended for larceny of a Sony television, property of the United States Government, valued at $130.00.  There is no further evidence of record, regarding this incident, available for review.

6.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 11 March 1976, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 1 year, 7 months and 13 days of creditable active duty.

7.  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.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

9.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 121, larceny of government property valued under $500.00; and a punitive discharge and confinement for 10 years for violation of Article 122, robbery.
10.  The letter provided by the applicant’s employer states that he has been a responsible employee for the past 20 years.  He has been polite, followed directions, and went beyond the call of duty when asked.  His case worker states in her letter that the applicant has been an exemplary ambassador to the Sentence Offender Drug Court outpatient program during the 6-month period from January to July 2008.  The applicant has incorporated recovery into his daily affairs as a responsible member of society.  The applicant's chaplain states in his letter that he has known the applicant for the past 5 years and that he is a dependable and trustworthy volunteer who is an asset to the team.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his criminal behavior during his military service.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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.





__________ _ X   _______   ___
       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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080013767



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