IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090010359


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states he was not given any real options during the discharge process.  His defense counsel advised him to request discharge in lieu of trial by court-martial.  He did not want to do that, but was forced to do so because unit members had threatened to kill him if the unit was retained in Southwest Asia for the purpose of conducting his trial.  Also, the commander told him he would help him get into Baylor University School of Medicine after he was discharged.

3.  The applicant adds that he has been a productive citizen since his discharge.  He is a college graduate, married with children, works as a registered diagnostic medical sonographer and vascular technologist, and performs interpreter/
translator duties for the Tennessee Supreme Court.

4.  The applicant provides:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with two DD Forms 215 (Correction to DD Form 214),

	b.  a personal letter,

	c.  a certificate from the Tennessee Supreme Court showing he is a registered court interpreter in Spanish for the period 21 October 2008 to 30 June 2012,
	d.  a copy of a diploma from Excelsior College showing he earned a Bachelor of Science degree in History, and

	e.  copies of his Tennessee driver license and sonography card.

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 U.S. Army Reserve (USAR) for 8 years on 14 November 1989.  He performed active duty for training on self-terminating orders from 25 May 1990 through 4 September 1990 and was awarded military occupational specialty 76J (Medical Supply Specialist).

3.  On 20 December 1990, the applicant entered active duty in support of Operation Desert Shield/Desert Storm.  He served in Southwest Asia from 11 January 1991 through 26 April 1991.

4.  While in Southwest Asia, the applicant stole an M16A1 rifle, magazines, and ammunition.  It was his intent to ship the weapon and ammunition back home; however, in advance of a unit health and welfare inspection, he voluntarily returned the weapon, magazines, and ammunition.

5.  On 5 April 1991, the applicant was charged with two specifications of violating Article 121, Uniform Code of Military Justice, in that he did:

	a.  between on or about 1 February 1991 and on or about 10 March 1991, steal one M16A1 rifle, military property of a value of about $426.00; and

	b.  between on or about 1 February 1991 and on or about 10 March 1991, steal 7 boxes, each containing 20 rounds of 5.56mm ammunition; nine M16A1 


rifle magazines, each containing 20 rounds of 5.56mm ammunition; and one M16A1 rifle magazine containing 28 rounds of 5.56mm ammunition, military property of a value of about $53.00.

6.  After consulting with legal counsel on 20 April 1991, the applicant requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  In so doing, he acknowledged that he was guilty of the charge(s) against him, charges which authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that he had no desire for rehabilitation or further military service and that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf in which he recounted his family background, his desire to become a doctor, his USAR enlistment based on a strong sense of patriotism, and his voluntary entry on active duty.  He stated he was sorry for having "kept the weapon and ammo for an extended period of time" and did not realize such an act demonstrated intent to steal.

7.  On an unknown date, the approving authority approved the applicant's request for discharge with a UOTHC discharge.  He was discharged on 10 May 1991.

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, 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 UOTHC is normally considered appropriate.

9.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 requests a discharge upgrade to honorable.

2.  The applicant stole an M16A1 rifle with magazines and ammunition.  He was caught and court-martial charges were preferred against him.  Had he gone to trial, he could have been found guilty and received a felony conviction and a punitive discharge.  Instead he requested discharge in lieu of trial.

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.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  The applicant's post-service accomplishments have been noted and he is commended for his service to his community and to the Tennessee Supreme Court.  However, these accomplishments are insufficient as a reason for upgrading his UOTHC discharge.

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)                                         AR20090010359



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ABCMR Record of Proceedings (cont)                                         AR20090010359



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