IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010853 


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 general discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), be upgraded to honorable.

2.  The applicant states that although he was advised by an attorney to accept the administrative discharge, he now realizes that this was a mistake.  He had bankrupted his family to defend himself against these false charges and thought he had no other choice.

3.  The applicant provides a letter from the civilian attorney who represented him at the time 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.  On 27 September 1983, the applicant, a Regular Army staff sergeant, was awarded military occupational specialty 19D3X, cavalry scout drill instructor.

3.  On 10 June 1985, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by collecting money from trainees to buy cleaning supplies, for two specifications of accepting gifts and/or donations and for intimidating trainees to dissuade them from reporting such conduct, for extortion by threatening punishment, for assault by striking a trainee, and for three instances of accepting gifts from trainees in exchange for overnight passes.

4.  An Article 32, UCMJ, hearing was conducted on 31 October 1985 to determine the truth as set forth in the charges and to recommend a disposition of the case in the interest of justice and discipline.  The following details are pertinent:

	a.  the Article 32 investigating officer was an experienced Judge Advocate General’s Corps (JAGC) major;

	b.  the applicant was present and represented by both an assigned military defense counsel, a JAGC officer, and a civilian attorney;

	c.  the Article 32 investigator found the first specification of violation of a lawful general regulation was unfounded in that there was conflicting evidence as to whether or not the applicant actually knew about the collection of money from the trainees to purchase cleaning supplies.  The Article 32 investigator recommended that this specification be dismissed;

	d.  the Article 32 investigator found all of the other specifications sustained by the available evidence;

	e.  the Article 32 investigator recommended that the charges and specifications be disposed of at a general court-martial; and

	f.  the Article 32 investigator opined that the applicant "is without doubt the most dishonest of the drill instructors and seemed to reap the largest profit…He accepted money from PVT B____ and PVT M____ and liquor from B____, S____, and C____.  He stole PVT R____'s boots.  He assaulted PVT M____."

5.  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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  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 Veterans Administration [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The troop commander, squadron commander, and brigade commander all recommended that the applicant be separated with an other than honorable conditions discharge.

8.  The Staff Judge Advocate recommended separation with a general discharge. 
The discharge authority approved the applicant's request and directed the issuance of a general discharge under honorable conditions.

9.  The applicant was discharged on 27 November 1985 under the provisions of Army Regulation 635-200, chapter 10.  He had completed 7 years, 7 months, and 27 days of creditable active service.

10.  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.

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for each and every one of the applicant's offenses.

12.  There is no indication that the applicant applied to the Army Discharge Review Board during its 15-year period of eligibility.

13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  The letter of support from the applicant's civilian defense attorney states:

	a.  he believes the applicant was separated on a "plea bargain agreement under which most if not all of the charges pending against him were dismissed";

	b.  he believes that Mr. M____ was the only one of the three defendants who proceeded to trial and that the charges against Mr. M____ were the most serious;

	c.  he found the applicant to be intelligent, honest, and sincere and believes that he has been a productive citizen since discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he now realizes that accepting the administrative discharge was a mistake.  He had bankrupted his family to defend himself against these false charges and thought he had no other choice.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  Notwithstanding the applicant's assertion that the charges were false and the civilian attorney's assertions that most of the charges were dropped and that Mr. M____ committed the most serious offenses, in light of the Article 32, UCMJ, investigator's report, the separation with a general discharge was actually quite lenient treatment.

4.  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)                                         AR20090010853



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ABCMR Record of Proceedings (cont)                                         AR20090010853



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