BOARD DATE:	  22 September 2009

		DOCKET NUMBER:  AR20090009801


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 his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the incident for which he was charged was an isolated incident and he does not believe it reflects his military service.  He states that his Army service up to that time was honorable.  He also states that his lapse in good judgment was an error on his part in which he has paid for the last 33 years.  He finally states that his continual punishment of an other than honorable discharge does not serve any purpose”.

3.  In support of his application, the applicant provides a copy of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty), and four
character letters from friends attesting to his honor.

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 18 June 1975, the applicant's enlisted in the Regular Army in pay grade 
E-1 for a period 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 91B, (Medical Specialist).  
He was promoted to pay grade E-2 on 18 October 1975, which was the highest grade that he held.  

3.  On 29 June 1976, court-martial charges were preferred against the applicant  for two specifications for stealing two microscopes, of a value of about $1058.00, the property of the US Government, and for stealing a camera and two lenses, a value of about $400.00, for the wrongful appropriation of an ambulance, for  being drunk while on duty, for being absent without leave, for failing to obey an order by his superior warrant officer and for willfully disobeying and being disrespectful to a warrant officer which is his superior warrant officer.

4.  On 23 July 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial.   In his request for discharge the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him to included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. After consulting with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

5.  On 27 July 1976, the separation authority approved the applicant’s request for discharge, reduced the applicant to the lowest enlisted grade and directed that he be issued an Undesirable Discharge Certificate.

6.  On 9 August 1976, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions.  He completed 1 year, 1 month, and 22 days of creditable active military service.

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 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

9.  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.

10.  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’s request was carefully considered, however, there is no evidence and the applicant has not provided any evidence that shows that the punishment he received was inequitable or unjust.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the good of the service in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

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 this requirement.

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)                                         AR20090009801



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ABCMR Record of Proceedings (cont)                                         AR20090009801



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