IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090010803 


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, upgrade of his under other than honorable conditions discharge and upgrade of his grade to the highest grade he held during his service in the Army.

2.  The applicant states, in effect, that he took the blame for someone else's action.  He states that a friend of his had been given a sexually transmitted disease by his wife and he kind of felt responsible because he introduced them.  When his friend went looking for the other guy with a firearm in tow, he went with him to calm him down.  While they were out driving around, his friend started drinking and eventually passed out.  He states that this gave him the opportunity to take the firearm from his friend and he took his friend back to the barracks to sleep it off and keep him out of trouble.  He continues that he hid the firearm in the ceiling of the barracks with the plan to give it back to his friend when everything blew over.  However, the morning after this incident, there was a contraband inspection in the barracks and the weapon was found.  He concludes that his friend never came forward to explain the situation and let him take the fall.

3.  The applicant indicates that he desires to personally appear before the Board.

4.  The applicant provides no additional documentation in support of his application. 



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 record shows he enlisted in the Regular Army (RA) on
24 July 1990.  His record shows that he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  His record further shows that the highest grade he attained during his tenure in the Army was private first class (PFC/E3).

3.  The applicant's record contains a memorandum from the Staff Judge Advocate of the 7th Infantry Division (Light) and Fort Ord which shows that the applicant accepted non-judicial punishment (NJP) on 15 January 1992 for violation of Article 121, Uniform Code of Military Justice (UCMJ), larceny of $660.00 in currency.  As punishment for this offense, he was reduced to private (PVT/E1), forfeiture of $376.00 for 2 months (suspended until 15 March 1992), and 45 days of restriction and extra duty.

4.  The applicant's records contain a DD Form 458 (Charge Sheet), dated 11 March 1993, which shows he was charged with stealing a Davis .380 semi-automatic pistol from another individual and improper possession of a privately owned firearm on 28 February 1993.

5.  On 15 March 1993, the applicant consulted with legal counsel and he 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 other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a under other than honorable conditions discharge was authorized.  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.

7.  On 26 March 1993, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 20 April 1993, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge confirms he completed a total 2 years, 8 months, and 27 days of creditable active military service and held the grade of PVT/E1.

8.  The applicant's military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 11 June 2007, that shows he requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 27 June 2008, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB's decision on that same date.

9.  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.

10.  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.
11.  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.

12.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.)

2.  The applicant's contention that he was taking the blame for someone else when he was charged for stealing and improperly possessing a firearm was carefully considered.  The evidence of record shows he accepted NJP for another charge of larceny prior to this incident.  Therefore, there is no compelling evidence contained in his records nor does he provide any evidence that would support his contention or be a basis to grant the requested relief.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record of service as evidenced by his disciplinary history clearly did not support the issuance of a general or honorable discharge by the separation authority at the time of his discharge and it does not support an upgrade at this time.

5.  The applicant acknowledged that he understood that if his request for a discharge for the good of the service in lieu of courts-martial was approved he would be reduced to the grade of PVT/E1.  Therefore, lacking evidence that his reduction to PVT/E1 was improper, there is no basis to grant the requested relief.

6.  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)                                         AR20090010803



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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