IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014124 


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 states that he was honorably discharged in February 1982 and that he immediately reenlisted for 6 years in February 1982.

3.  The applicant provides in support of his application a copy of instructions on preparing an application to the Army Board for Correction of Military Records (ABCMR); a copy of Army Regulation 15-185, Boards, Commissions, and Committees (ABCMR); an undated statement entitled “My Record of Promotions”; an undated statement entitled “Why I Feel Clemency is Warranted”; an undated statement entitled “Racial Discrimination”; an undated statement entitled “My Award & Decoration & Recommendation”; an undated statement entitled “Personal Problems Impaired my Ability”; and an undated statement entitled “Good Citizen Since Discharge.”  

4.  The applicant also provides a Certificate of Completion for the 50th Emergency Medical Technicians Course; a Letter of Recommendation from the Nursing Supervisor of Oak Forest Hospital, dated 22 April 2007; a Certificate of Participation for training in a Nonviolent Crisis Intervention Course; a copy of his Chronological Record of Medical Care; an undated Letter of Appreciation from the United States Army Combat Developments Experimentation Command, Chief, Project Team I; a Certificate of Training in a Bradley Fighting Vehicle Course; a Certificate of Promotion to the rank of sergeant; a copy of his 

Honorable Discharge Certificate, dated 22 February 1982; a copy of his Enlisted Evaluation Report for the period covering September 1982 through November 1982; a Certificate of Achievement from the 3rd Armored Division, dated 23 October 1981; a copy of a United States Army Safety Award, dated 27 September 1982; and a copy of his Enlistment Contract dated, 23 February 1982.

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 6 August 1979, the applicant enlisted in the Regular Army in Chicago, Illinois, for 6 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was transferred to Germany on 31 October 1979, and he was assigned to the Combat Support Company, 1st Battalion, 48th Infantry Regiment, 3rd Armored Division.

3.  The applicant returned to the Continental United States on 15 December 1981, and he was assigned to Armor Company C, Combat Developments Experimentation Command, Fort Hunter Liggett, California, on 28 January 1982.

4.  The applicant reenlisted in the Army for 6 years on 23 February 1982.

5.  On 28 April 1983, the applicant was notified that charges were pending against him for making a false and fraudulent claim against the government on or about 25 January 1983.  According to the Charge Sheet, the applicant presented a voucher to the Finance and Accounting Officer at Fort Ord, California, for pay in the amount of $258.54 for 10 days of lodging in the Colony Inn Hotel during temporary duty at Fort Benning, Georgia, for the period 10 January 1983 through 21 January 1983.  The Charge Sheet shows that the claim was false and 



fraudulent in that he had paid only 8 days of lodging to the hotel and that only 8 days should have been claimed.  The claim was in excess of $188.22 and was then known to be false and fraudulent.

6.  The applicant acknowledged receipt of the notification on 19 May 1983 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request for discharge, he acknowledged that he understood that he may be discharged under other than honorable conditions and furnished an Other Than Honorable Conditions Discharge Certificate.

7.  The appropriate authority approved the request for discharge on 20 May 1983, and he directed the issuance of a discharge under other than honorable conditions.  

8.  Accordingly, on 6 June 1983, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 3 years, 10 months, and 1 day of net active service.

9.  On 16 July 1987, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade for his discharge.  The ADRB denied his request on 1 April 1988. 

10.  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.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  His supporting documents have also been considered during the review of his case.  However, neither his contentions nor his supporting documents are sufficiently mitigating to warrant an upgrade of his discharge.  The evidence of record shows that he submitted a false and fraudulent claim against the government and that he opted to submit a request for discharge rather than to stand trial by court-martial.  

4.  Considering the nature of his offense, it does not appear that the type of discharge that he received is too harsh and his discharge properly characterizes his overall record of service.

5.  In order to justify correction of a military record the applicant must show 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.

6.  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.




      _______ _ 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)                                         AR20080014124





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ABCMR Record of Proceedings (cont)                                         AR20080014124



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