IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016293


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, the widow of a deceased former service member (FSM), requests upgrade of the FSM's under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that the FSM was not able to change his discharge due to his untimely death.

3.  The applicant submitted a copy of the FSM's DD Form 214 (Certificate of Discharge or Release from Active Duty) and his Death Certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army (RA) on 5 October 1981.

2.  The FSM’s record contains a copy of a DD Form 458 (Charge Sheet), dated 16 August 1984, which documents the following charges:

   a.  Charge I, Article 81, Uniform Code of Military Justice (UCMJ), to wit; commit larceny and wrongful disposition of various items of military equipment and spare parts to include compressors, starters for trucks, and vehicle batteries in excess of $100.00 which was the property of the U.S. and in order to effect the object of conspiracy did agree to drive a staff sergeant so he could transfer the stolen property to Korean nationals, and then accepted payment from the staff sergeant for his part in the larcenies and wrongful dispositions.

   b.  Charge II, Article 121, UCMJ, with two Specifications:
      
(1)  Specification I:  in a place outside of the territorial limits of the U.S.
between 1 April and 30 April 1984, steal six truck starters and seven compressors, which were property of the U.S. and valued in excess of $100.00 and 

		(2)  Specification II:  at Camp Casey, Korea steal 20 vehicle batteries, which were property of the U.S., valued at about $4,000.00.

   c.  Charge III, Article 108, UCMJ, at an unknown location in the Republic of Korea, between Camp Casey and Camp Edwards, between 1 March and 
31 March 1984 without proper authority, sell to unknown Korean nationals five starters for military trucks which were property of the U.S. government and valued in excess of $100.00.

3.  On 4 September 1984, the FSM consulted with legal counsel and 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 FSM voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

4.  In his request for discharge, the FSM 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 or dishonorable discharge.  He further acknowledged he understood that if his discharge request were 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.

5.  On 7 September 1984, the separation authority directed that the FSM be separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial, and that he receive an under other than honorable conditions discharge.  On 20 September 1984, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time confirms he completed a total of 2 years, 11 months, and 16 days of creditable active military service.

6.  The FSM died on 7 August 2008.

7.  There is no evidence that the FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
   
8.  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.

9.  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 evidence of record shows that the FSM voluntarily requested and accepted a discharge in lieu of court-martial for larceny and wrongful disposition of various items of military equipment and spare parts, for effecting the object of conspiracy by accepting payment from a staff sergeant for his part in the 
larcenies and wrongful dispositions, and for selling to unknown Korean nationalist five starters for military trucks which were property of the U.S. government.

2.  The FSM's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial is presumed to have been administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.








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)                                         AR20090016293



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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