IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019305 


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 his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he did not know he could request an upgrade to his discharge.

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.  The applicant's military personnel records show he enlisted in the Regular Army on 21 April 1977 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 16P (Chaparral Crewman).

3.  On 20 December 1977, the applicant was assigned to the 2nd Battalion, 2nd Infantry at Fort Lewis, WA.

4.  On 6 September 1978, court-martial charges were preferred against the applicant for stealing a stereo amplifier of a value of about $200.

5.  On 20 September 1978, additional court-martial charges were preferred against the applicant for:

* unlawful entry in an area under Federal jurisdiction and military control with intent to commit a felony, to wit: larceny
* stealing a wallet and U.S. currency of a value of about $204

6.  On 25 September 1978, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he: 

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State law


8.  Counsel countersigned this statement and attested that he had counseled the applicant concerning the:

* basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice
* possible effects of an under other than honorable conditions discharge, if his request is approved
* procedures and rights available to him

9.  On 6 October 1978, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 24 October 1978, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 for the good of the service.  He had completed 1 year, 6 months, and 4 days of active service that was characterized as under other than honorable conditions.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

13.  Army Regulation 635-200 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 discharge under other than honorable conditions should be upgraded to a general discharge under honorable conditions.

2.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged he could receive an under other than honorable conditions discharge.  

3.  The applicant’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, was administratively correct and in conformance with applicable regulations.  

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  

5.  The charges against the applicant included unlawful entry in an area under Federal jurisdiction and two charges of theft of a value of $200 or more.  Therefore, his quality of service is considered unsatisfactory and he is not entitled to a general discharge under honorable conditions.

6.  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 that 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)                                         AR20090019305



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ABCMR Record of Proceedings (cont)                                         AR20090019305



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