IN THE CASE OF:	

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090015341 


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 honorable conditions be upgraded to honorable.

2.  The applicant states that he wants to be eligible for Department of the Veterans Affairs (VA) employment opportunities and education benefits.  Since leaving the military, he has been trying to better himself.  He belongs to several church organizations and he is the father of three autistic boys.  He believes he is deserving of a second chance because everyone makes mistakes.

3.  The applicant provides no additional evidence 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.  On 30 August 1988, the applicant enlisted in the Regular Army beginning in the rank of private first class, pay grade E-3.  He completed his initial training and was awarded military occupational specialty 16H (Air Defense Artillery Operations and Intelligence Assistant).

3.  On 3 March 1989, the applicant was assigned to Fort Carson, Colorado.

4.  On 16 October 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing platoon formation.  The continuation sheet is not available for review.  The applicant's punishment included reduction to pay grade E-1 (suspended for 
6 months), a forfeiture of $163.00 pay for 1 month, and 14 days of extra duty (suspended for 6 months).

5.  A DD Form 362 (Statement of Charges for Government Property Lost, Damaged or Destroyed), dated 20 December 1989, shows the applicant accepted responsibility for the loss of a government tool box and tools valued at $236.03.

6.  The applicant failed to obey a lawful order to lose five to eight pounds per month starting in September 1989.  As a result on 2 January 1990, the punishment that was suspended on 16 October 1989 was vacated.  

7.  In an undated statement, the applicant's commander indicated that in February 1990 he preferred charges against the applicant for larceny of a tool box (government property).  They had to be dismissed because a noncommissioned officer had questioned the applicant without advising him of his rights.  The applicant had admitted to taking the tool box and selling it to an unknown person.

8.  On 22 March 1990, the applicant’s commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense (larceny of government property), failure to report on several occasions, and for disobeying a lawful order.  The commander recommended that he receive a general discharge under honorable conditions.

9.  On 22 March 1990, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected to make a statement in his own behalf and requested representation by counsel.  His statement essentially said that he was not a bad Soldier.  He tried to do the right thing.  He did not try to hurt himself to receive a physical profile.  He asked for an honorable discharge.
10.  On 30 March 1990, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge under honorable conditions.

11.  Accordingly, on 11 April 1990, the applicant was issued a general discharge under honorable conditions.  He had completed 1 year, 7 months and 12 days of creditable active service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense that could result in a punitive discharge.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 121, larceny of military property valued at $500.00 or less is a bad conduct discharge and confinement for 1 year.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded, because everyone makes mistakes.  Therefore, he believes he should be given a second chance.  He further states that he wants to improve his employment opportunities and be eligible for education benefits.

2.  The record shows the applicant admitted to stealing a government tool box and tools valued at $236.03.  Clearly, this was a serious offense.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant’s unsubstantiated claim of good post-service conduct does nothing to mitigate the seriousness of his offenses during his period of military service.  The applicant's claim that everyone makes mistakes may be true; however, he committed a criminal act which is much more than a simple mistake.

6.  Based on his record of indiscipline, 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.

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)                                         AR20090015341



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ABCMR Record of Proceedings (cont)                                         AR20090015341



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