BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090018145 


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 an honorable discharge.

2.  The applicant states:

* he was wrongfully accused of something he did not do
* at age 18, he was scared and he really did not understand who
* maybe he was wrong for being in the company of the guys who really committed the crime
* he just didn't know the guys were "like that"
* he had been at Fort Polk, LA for only a few months

3.  The applicant provides no additional documentation 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) on 18 January 1979, at age 18.  He successfully completed his training as an armor crewman.

3.  An investigation was initiated by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) after a Soldier was apprehended for stealing a stereo system from another Soldier.  At the time that the Soldier was apprehended he admitted to taking the stereo system and he stated that the applicant helped him take the items from the other Soldier's room.  The applicant was apprehended, advised of his rights, and transported to the CID office.  He was later released to his unit.

4.  On 21 September 1979, the applicant was notified that charges were pending against him for:

* conspiring with another Soldier to commit an unlawful entry into the room of a third Soldier
* unlawfully entering the room of another Soldier
* conspiring with another Soldier to commit larceny of stereo equipment valued in excess of $100.00, the property of a third Soldier
* stealing stereo equipment, valued in excess of $100.00
* unlawfully entering the room of another Soldier with the intent to commit a criminal offense, to wit:  steal stereo equipment therein

5.  The applicant acknowledged receipt of the notification and on 9 October 1979, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his voluntary request, he acknowledged he was making his request of his own free will and had not been coerced any person.  By submitting his request for discharge, he was admitting he was guilty of the charges against him or of lesser included charges which also authorize the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he did not want further rehabilitation, for he did not want to perform further military service.  He submitted a statement in his own behalf in which he emphasized that because of the charges pending against him, he had begun experiencing problems both in his home and his unit.  He stated that he felt a discharge would alleviate his problems.

6.  The appropriate authority approved his request for discharge on 20 November 1979 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 6 December 1979, the applicant was accordingly discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had completed 10 months and 19 days of net active service this period.

8.  The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7a, of 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.

11.  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 applicant was discharged in accordance with applicable laws and regulations.

2.  His contentions have been considered.  However, the fact that he was 18 years old at the time of his enlistment in the RA is not sufficiently mitigating to warrant the relief requested.

3.  His records show that charges were pending against him for his acts of misconduct and considering the nature of his offense, it does not appear that the type of discharge he received was too harsh.

4.  Additionally, there is no evidence in his record that shows he ever stated he was innocent of the charges that were pending against him.  He could have stood trial by court-martial if he believed he was being accused of something that he did not do.  Instead, he submitted a request for discharge for the good of the service in lieu of trial by court-martial and as part of his request, he admitted that he was guilty of the pending charges.

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)                                         AR20090018145



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ABCMR Record of Proceedings (cont)                                         AR20090018145



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