IN THE CASE OF:	  

		BOARD DATE:	    7 January 2010

		DOCKET NUMBER:  AR20090010673 


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

2.  The applicant states that his discharge was supposed to be upgraded after 2 years.  

3.  The applicant provides no additional documentation in support of his request.

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's military records show he enlisted in the Army Delayed Entry Program on 25 September 1979.  He enlisted in the Regular Army in pay grade E-1 on 23 October 1979, for 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 17B (Field Artillery Radar Crewmember).  He was promoted to pay grade E-4 on 1 July 1981.  He served in Korea from 9 December 1981 to 26 October 1982.

3.  On 23 September 1982, a DD Form 458 (Charge Sheet) was prepared by the Commander, Battery E (Target Acquisition), 25th Field Artillery, 2nd Infantry Division, Camp Stanley, Republic of Korea.  The applicant was charged with one specification of larceny of property of another Soldier, valued in excess of $100.000; and one specification of receiving the stolen property of another Soldier, of a value in excess of $100.00, on 28 August 1982.  On 24 September 1982, court-martial charges were preferred against the applicant.

4.  On 6 October 1982, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He further acknowledged that there was neither an automatic upgrade nor review of his discharge and he must apply to the Army Discharge Review Board (ADRB) or the ABCMR and that the act of consideration by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.

5.  In a Memorandum for Record, dated 18 October 1982, the trial counsel stated that the applicant’s company commander recommended approval of the applicant’s request with the issuance of a general discharge, under honorable conditions, based on the applicant’s prior good duty performance.  The applicant’s battalion and division commanders recommended approval of the applicant's request with the issuance of a discharge under other than honorable conditions.  The trial counsel stated that the evidence with respect to larceny was circumstantial and the government probably would be successful in obtaining a conviction for the less serious offense of receiving stolen property.  The applicant did not have a prior disciplinary history.  The seriousness of the charged misconduct warranted the service member be eliminated from the service.

6.  On 21 October 1982, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued and that the applicant be reduced to pay grade E-1.
7.  The applicant was discharged on 27 October 1982 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He was credited with completing 3 years and 5 days of net active service.

8.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant was charged with one specification of larceny and receiving stolen property.  He requested a discharge in lieu of facing court-marital charges.  The trial counsel sought the recommendations from the applicant’s commanders and the applicant’s battalion and division commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.  Trial counsel also recommended approval of the applicant’s request and stated that the seriousness of the charged misconduct warranted the applicant’s elimination from the service.

3.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly based on the charges.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further acknowledged that there was no automatic upgrade of his discharge, he was required to apply to the ADRB or ABCMR, and his applying did not imply his discharge would be upgraded.

4.  The applicant has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable. 

7.  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)                                         AR20090010673



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ABCMR Record of Proceedings (cont)                                         AR20090010673



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