IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090014235 


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, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he turned in his sergeant for stealing Government meat and his captain told him that he would never get anything from the Army.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record).  He provides no additional evidence 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 record shows he enlisted in the Regular Army and entered active duty on 19 May 1977.  It also shows he was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist) and that private/E-2 was the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  On 23 March 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his place duty without authority on 17 March 1978.  His punishment for this offense was a reduction to private/E-1 (suspended for 
30 days), a forfeiture of $75.00 pay for 2 months, and 14 days of extra duty and restriction.

5.  On 22 August 1978, the applicant accepted NJP for participating in a breach of the peace by engaging in pushing and wrestling with another Soldier in his unit and for disorderly conduct on or about 28 July 1978.  His punishment for these offenses was a reduction to private/E-1 and a forfeiture of $91.00 pay.

6.  On 25 November 1978, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 108, 126, 128, 130, and 134 of the UCMJ as follows:  Article 108, by willfully and wrongfully destroying food valued at $1,074.35, the property of the US Government on or about 23 and 24 November 1978; Article 126, by willfully and maliciously setting fire to a walk-in cooler, the property of the US Government on or about 23 and 24 November 1978; Article 128, by unlawfully striking a private in the face with his fist on or about 23 November 1978; Article 130, by unlawfully entering the 240th Consolidated Dining Facility, the property of the US Government, with the intent to commit a criminal offense on or about 23 and 
24 November 1978; and Article 134, by wrongfully communicating a threat to another Soldier to injure him on or about 23 November 1978.  

7.  On 9 January 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UOTHC discharge, under the provisions chapter 10, Army Regulation 635-200 (Personnel Separations), and of the rights 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.  In his request for discharge, he indicated he understood that by submitting the discharge request he was acknowledging he was guilty of the charge(s) against him or of a lesser included offense therein which also authorized the imposition of a bad conduct or dishonorable discharge.

8.  In his request for discharge, the applicant also acknowledged that he understood 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; and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further indicated he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  The applicant elected not to submit a statement in his own behalf.

9.  On 29 January 1979, the separation authority approved the applicant's request for discharge and directed that he issued a UOTHC discharge.  On 
5 March 1979, the applicant was discharged accordingly.

10.  On 5 March 1979, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court-martial and that he received a UOTHC discharge.  It also shows he completed a total of 1 year, 9 months, and 14 days of creditable active military service.  

11.  There is no evidence showing the applicant applied to the Army Discharge Review Board 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 HD or general discharge (GD) is authorized if warranted based on the overall record of service, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

13.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 HD.  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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested 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.  

2.  The evidence further confirms the applicant was processed for separation in lieu of trial by court-martial at his own request.  The separation authority approved his request and appropriately directed that he receive a UOTHC discharge which was consistent with regulatory policy in effect at the time and accurately reflects the applicant's overall record of service.

3.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP for various acts of misconduct on two separate occasions.  As a result, his overall record of service did not support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.

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 related to his 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)                                         AR20090014235



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ABCMR Record of Proceedings (cont)                                         AR20090014235



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