BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090017262 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was not the person who stole a watch from another Soldier.  He, in effect, states this false assumption resulted in his receipt of an other than honorable discharge.

3.  The applicant provides no 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's record shows he enlisted in the Regular Army and entered active duty on 21 June 1977 in the rank/grade of private (PVT)/E-1.  He did not complete initial entry training and was not awarded a military occupational specialty.  At the time of discharge, the applicant held the rank/grade of PVT/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the prescribed time to his appointed place of duty.

4.  A DA Form 3975 (Military Police Report), dated 14 September 1977, shows the applicant and another Soldier were apprehended and charged with violation of Article 121 (larceny) of the UCMJ for the theft of a watch.  He was advised of his legal rights under Article 31 of the UCMJ and of the charge against him.  The applicant waived his rights and provided a sworn written statement, dated 12 September 1977, admitting he entered the victim's room, broke into the victim's wall locker, and stole the watch on 4 September 1977.  This confession was corroborated by several sworn statements from other Soldiers who were aware of the applicant's crime.

5.  On 14 September 1977, the applicant's unit commander informed him of his disqualification from the Nuclear Surety Personnel Reliability Program based upon his:

	a.  "temptuous" attitude and misconduct toward the law,

	b.  conspiracy and rendering of a false statement,

	c.  pending court-martial charges, and

	d.  consideration for administrative separation for cause.

6.  Two DD Forms 458 (Charge Sheet), dated 4 October 1977 and 28 October 1977, show the applicant was charged with violation of various articles of the UCMJ and his chain of command recommended he be tried by special court-martial empowered to adjudge a bad conduct discharge.  The charges and specifications included:

	a.  Article 86 - two specifications for failing to go at the prescribed time to his appointed place of duty,

	b.  Article 121 - one specification for stealing a watch from another Soldier,

	c.  Article 130 - one specification for unlawfully entering the room of another Soldier with intent to commit a criminal offense, and

	d.  Article 134 - one specification for unlawfully entering the room of another Soldier and two specifications of breaking restriction.

7.  On 27 October 1977, the applicant 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions and acknowledged 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The applicant's unit and battalion commanders recommended disapproval of his request due to the seriousness of his offenses.  However, on 22 November 1977, the separation authority approved the applicant's request and directed that he be discharged and furnished a DD Form 794A (Other than Honorable Conditions Discharge Certificate).

9.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Orders 326-163, dated 22 November 1977, discharged the applicant effective 23 November 1977.

10.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant at the time confirms he was separated under the provisions of chapter 10 of Army Regulation 635-200 with an under other than honorable conditions discharge.  He had completed a total of 4 months and 9 days of creditable active military service and he had 24 days of lost time.

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 at any time after the charges have been preferred.

12.  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.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on one occasion.

3.  On 12 September 1977, the applicant rendered a sworn statement wherein he confessed to stealing a watch from another Soldier.  This confession was corroborated by several sworn statements from other Soldiers who were aware of the applicant's crime.

4.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

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)                                         AR20090017262



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ABCMR Record of Proceedings (cont)                                         AR20090017262



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