IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012123 


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 an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was blamed for taking $40.00 out of a locker on base and he was told if he did not confess, he would go to jail.  He also states that an undercover investigation could not prove he did it and that his rank was taken.  After this incident, he did not report to the motor pool to work and was sent to an outprocessing unit where he was ultimately discharged.  He further states that he did not want to leave the Army because he had orders to go overseas but his problems could not be resolved.  He thanks the Army for keeping him off the streets and he wishes he could reenter the Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 6 July 1981 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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 27 June 1978.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (wheel vehicle mechanic).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records further show he served in Korea from on or about 6 January 1979 to on or about 30 December 1979.  His awards and decorations include the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 29 January 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing $21.00, the property of Sheridan Gymnasium (Locker Rental Fees), on or about 16 November 1980.  His punishment consisted of 21 days of extra duty and a reduction to private (PV2)/E-2.

5.  The applicant's record contains several counseling statements by members of his chain of command for various infractions including missing guard mount, failure to repair, lack of motivation, poor attitude, and substandard performance.

6.  On 6 February 1981, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his various infractions of missing guard mount, failure to repair, lack of motivation, poor attitude, and substandard performance.  The applicant was provided a copy of the bar; however, he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the appropriate authority on 22 April 1981.

7.  On 21 May 1981, court-martial charges were preferred against the applicant for six specifications of failing to go at the time prescribed to his appointed place of duty in February and March 1981; one specification of disobeying a lawful order on or about 11 March 1981; and one specification of being derelict in the performance of his duties on or about 21 January 1981.  

8.  On 16 June 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under 
the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

9.  In his request for discharge the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."  He also elected not to submit a statement in his own behalf.

10.  On 18 June 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 6 July 1981, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 3 years and 5 days of creditable active military service.

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

12.  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.


13.  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 contends that his under other than honorable discharge should be upgraded to a general, under honorable conditions discharge.

2.  The applicant's record shows he was charged with the commission of offenses 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.  The applicant voluntarily, willingly, and in writing requested discharge from the Army 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's desire to reenter military service is noted; however, in order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions 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)                                         AR20090012123



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ABCMR Record of Proceedings (cont)                                         AR20090012123



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