IN THE CASE OF:	  

		BOARD DATE:	        21 April 2009

		DOCKET NUMBER:  AR20090000014 


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 honorable.

2.  The applicant states, in effect, that in exchange for his testimony at a court-martial against another Soldier(s), he was given immunity for his involvement in the theft of money from a German national.  In his testimony he admitted that he received money from the perpetrators.  Two weeks later he was charged with receiving stolen property.  He contends that this was double jeopardy and very unfair.  His lawyer advised him that he would most likely lose at court-martial and that he should make a deal.  The applicant contends that he was innocent.  Since then he has not been in any trouble and feels that he should receive an upgrade of his discharge.  He also does not understand why he was reduced to the rank of private.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 3 October 1984, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He was subsequently assigned for duty at Fort Hood, Texas.

3.  On 6 February 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order and to report for morning formation.  The punishment included reduction to pay grade E-3 and 45 days of restriction and extra duty.
 
4.  On 6 October 1986, the applicant was assigned for duty in the Federal Republic of Germany.

5.  On 19 December 1986, the applicant was promoted to specialist four, pay grade E-4.

6.  General Court-Martial Orders Number 18, 2nd Armored Division (Forward), dated 14 December 1988, show that the applicant was charged with conspiracy to commit a robbery and steal a wallet and currency by means of force and violence.  The applicant was found not guilty of both charges and specifications.

7.  On 17 January 1989, the applicant requested discharge for the good of the service.  Documentation of the charges is not available for review.  His request states that he was charged with the violation of Article 134, UCMJ, for receiving stolen property.  He did not state the value of this property.

8.  On 17 January 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 16 February 1989, the separation authority approved the applicant’s request for discharge and directed that he be discharge under other than honorable conditions.  On 24 February 1989, the applicant was discharged accordingly.  He had completed 4 years, 4 months, and 22 days of creditable active military service.

11.  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.

12.  Army Regulation 635-200 (Personnel Separations) 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.  This regulation further provides that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

13.  Under the UCMJ, the maximum punishment allowed for a violation of Article 134 for knowingly receiving stolen property of a value of more than $100.00 is a punitive discharge and confinement for 3 years.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 contends that he was unfairly charged and that based on his good post-service conduct he should receive an upgrade of his discharge.

2.  The evidence of record indicates that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his act(s) of indiscipline during his military service.

4.  The governing regulation required his reduction to the lowest enlisted grade based on the type of discharge rendered.

5.  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.

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.



      __________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)                                         AR20090000014



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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