BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090019903 


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

2.  The applicant states his wife worked at the post exchange (PX).  She was caught stealing property from the PX and he had nothing to do with her bringing stolen goods into their home.  The applicant states he accepted the discharge in order to have her released [from custody].  The applicant continues that he has been a good citizen since his discharge and has not been arrested.  He raised his daughter by himself and assisted in raising his cousin.

3.  The applicant provides no additional documentation in support of this case.

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 on 3 March 1981 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 75B (Personnel Administrative Specialist).

3.  On 24 January 1983, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for unlawfully striking his spouse repeatedly with his open hand and failure to be at his appointed place of duty.

4.  The applicant's court-martial charge sheet is not available for review.  However, the evidence shows charges were preferred against him when it was discovered that he was involved in fraud and larceny from the PX along with a group of Soldiers and dependents.

5.  On 10 May 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant indicated in his request that he understood he could 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, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide a statement in his own behalf.

6.  On 2 June 1983, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 21 June 1983, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed 2 years, 3 months, and 19 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 applicant contends that his discharge should be upgraded to a general under honorable conditions discharge.  His post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  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.

4.  The applicant's records show that he received one Article 15 for unlawfully striking his spouse and failure to be at his appointed place of duty and that charges were preferred against him for fraud and larceny.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.


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)                                         AR20090019903



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ABCMR Record of Proceedings (cont)                                         AR20090019903



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