IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090010873 


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 to an honorable discharge.

2.  The applicant states that he was a young 22 year old who followed the wrong people.  He states that he knew of a crime and he was convinced his wife and two children would be harmed if he did not confess and take full responsibility for a barracks theft.  He continues that one error in judgment should not cause him to lose credit for his years of positive service.  He concludes that since his discharge he has been a productive member of society and took jobs in a leadership capacity, but now is in need of medical attention for ailments brought on by his prior service.

3.  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 Pennsylvania Army National Guard (PAARNG) on 19 July 1974 for a period of 6 years.  On 18 November 1976, Headquarters, First U.S. Army, Fort Meade, MD, Orders 95-11 relieved him from his Reserve Component assignment and ordered him to active duty as a U.S. Army Reserve (USAR) Soldier effective 3 January 1977 for a period of 19 months and 15 days.  His record further shows that he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 9 (Awards, Decorations, and Campaigns) that he earned the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records document no acts of valor or significant achievement.

5.  On 9 December 1977, the applicant accepted non-judicial punishment (NJP) for being absent without leave (AWOL) for the period 31 October 1977 to 23 November 1977.  His punishment for this offense consisted of a forfeiture of $107.00 per month for one month and 14 days of restriction and extra duty.

6.  The applicant's record contains a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 10 April 1979 that shows the applicant was pending a special court-martial for violation of Article 121 [of the Uniform Code of Military Justice] for stealing.

7.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 25 May 1979 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 by reason of for the good of the service – in lieu of court-martial.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he knew of a crime and he was convinced his wife and two children would be harmed if he did not confess and take full responsibility for a barracks theft was carefully considered.  However, there is insufficient evidence in his available records and none provided by the applicant to support this contention.

2.  Although the separation processing paperwork is not available, the applicant’s duly constituted DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, indicating he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  A chapter 10 is a voluntary request for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, lacking evidence to the contrary, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's post-service conduct is noteworthy and commendable, but provides an insufficient basis to upgrade his voluntary discharge to either a general, under honorable conditions or an honorable discharge.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  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)                                         AR20090010873


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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