IN THE CASE OF:
BOARD DATE: 4 March 2010
DOCKET NUMBER: AR20090016466
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 discharge to honorable.
2. The applicant states he thought he was doing a good deed for another Solider by taking a television set off post, but it turned out to be a bad decision. He also states that he believes the matter could have been taken care of at the unit, but other Soldiers lied about what happened.
3. The applicant provides no additional documentary 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. The applicant enlisted in the Regular Army (RA) for a period of 3 years on 8 July 1966. Upon completion of training he was awarded military occupational specialty 36K (Field Wireman). He was promoted to the rank of sergeant (E-5) on 30 November 1968.
3. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably released from active duty on 25 April 1969 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation. At the time he had completed 2 years, 9 months, and 18 days of net active service.
4. The applicant again enlisted in the RA for a period of 6 years on 27 May 1969.
5. On 30 March 1970, charges were preferred against the applicant of stealing a television set of a value of about $96.00 which was the property of another Soldier.
6. The applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge. It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.
a. The applicant provided a statement that summarized both his personal life and military service. He acknowledged he was aware of the serious nature of the offense that his request for discharge was based on and stated he considered it "a regretful mistake for which [he] always will feel self-reproach."
b. The immediate commander and intermediate commanders recommended disapproval of the applicant's request for discharge stating that approval of his discharge would negate almost 5 years of his enlistment commitment and might send an inappropriate message to other Soldiers.
7. On 18 June 1970, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10. He also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.
8. The applicant's DD Form 214 shows he was discharged on 27 July 1970 in accordance with the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as under other than honorable conditions. At the time he had completed 1 year, 2 months, and 1 day of net active service during the period of service under review.
9. The applicant's military personnel records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 6 June 1972, that shows the applicant requested upgrade of his under other than honorable conditions discharge to a general discharge. The Army Discharge Review Board (ADRB), after consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and voted not to change the characterization of his service. The applicant was notified of the ADRB's decision on 5 October 1973.
10. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice. A punitive discharge is authorized for offenses under Article 121 for larceny and wrongful appropriation.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this 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.
a. This regulation 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.
b. This regulation also 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 his under other than honorable conditions discharge should be upgraded because he believes the offense for which he submitted his request for discharge could have been taken care of at his unit.
2. The applicant's contention was carefully considered.
a. The evidence of record shows the applicant acknowledged the serious nature of the offense when he voluntarily submitted his request for discharge for the good of the service. He also acknowledged that he may be discharged under other than honorable conditions.
b. The evidence of record shows the applicant's request for discharge was submitted in lieu of trial by court-martial. Thus, the evidence of record does not support the applicant's contention that the matter could have been taken care of at his unit (i.e., company level).
c. In view of the foregoing, the applicant's contention is not sufficiently mitigating to warrant relief.
3. The applicant's 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 was voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. The offense that led to his discharge far outweighs his overall record during the period of service under review. Therefore, considering all the facts of the case, the characterization of service directed was appropriate.
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.
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) AR20090016466
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