BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012857 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that he has lived with this discharge for more than 
32 years and he wants to move on with his life.  He further states that the Department of Veterans Affairs (VA) upgraded his discharge to honorable.  He contends that the Army has old data that needs to be corrected.  The records of the VA Regional Office in New York City and the New York Harbor Healthcare System both show him to be an Army honorable veteran.

3.  The applicant provides, in support of his application, copies of a VA letter, dated 1 November 2005, verifying him to be an "Army Honorable Veteran"; a VA letter, dated 10 September 2007, stating that the VA records show his "Character of Discharge" as honorable; and an advertisement seeking volunteers to support a candidate for mayor of New York City.

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 7 July 1976, the applicant enlisted in the Regular Army (RA).  He completed his initial training and he was awarded military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).

3.  On 16 January 1977, the applicant was assigned for duty with C Company, 32nd Signal Battalion, located in the Federal Republic of Germany.

4.  On 1 July 1977, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

5.  On 1 November 1977, charges were preferred against the applicant under the provisions of the Uniform Code of Military Justice (UCMJ).  Charge I was for violation of Article 121 (Larceny) by stealing a motor bike valued at over $100.00, the property of E---- H--------.  Charge II (two specifications) was for violation of Article 128 (Assault with dangerous weapon).  Specification 1 was for threatening a German national female with a knife and striking her on her head with his fist.  Specification 2 was for committing an assault upon a German national male by cutting him on his forehead with a knife.

6.  On 5 December 1977, 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 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, under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

8.  In his request for discharge, the applicant indicated that 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 9 December 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 23 December 1977, the applicant was discharged accordingly.  He had completed a total of 1year, 5 months and 17 days of creditable active military service.

10.  On 13 September 1990, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

 11.  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.

12.  Under the UCMJ, the maximum punishment allowable for violation of Article 121 for larceny under $500.00 is a bad conduct discharge and confinement for 
1 year; and for violation of Article 128 for assault with a dangerous weapon, a dishonorable discharge and 3 years confinement.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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. 

15.  The VA letter, dated 1 November 2005, as provided by the applicant, states that the applicant is an "Army Honorable Veteran."

16.  The VA letter dated 10 September 2007, as provided by the applicant, states that his character of service was certified to the VA by the military branch of service, or was shown on official military documents to be honorable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge has been upgraded by the VA and, therefore, his DD Form 214 should be corrected to show his discharge as honorable.

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 therefore were appropriate considering all the facts of the case.

3.  The letters provided by the VA to the applicant, indicating him to have an honorable characterization of service, are unexplainable.  The applicant's military records clearly show that he was discharged with a characterization of service of under other than honorable conditions.  Furthermore, there is no evidence of record showing that his discharge was ever upgraded.

4.  Based on the seriousness of his crime, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  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)                                         AR20090012857



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ABCMR Record of Proceedings (cont)                                         AR20090012857



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