BOARD DATE:	 8 July 2010 

		DOCKET NUMBER:  AR20090020738 


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 discharge characterized as under conditions other than honorable be upgraded.

2.  The applicant states that he was unjustly charged with a crime he did not commit.  He explains that upon return from going out, he walked through the stairwell and discovered two guys trying to break into a soda machine.  He adds that the next day he was called into the office and charged with guarding the door while they robbed the soda machine.  The applicant states that he was told that he would have to go to Leavenworth until his court date.  He says that not knowing how long it would take before he had a court date, he opted to take the undesirable discharge that was offered.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two supporting statements.

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 enlistment contract shows that he enlisted in the Regular Army on 31 December 1970.  However, his DD Form 214 incorrectly shows his date of entry as 30 December 1971.

3.  On 31 March 1971, nonjudicial punishment was imposed against the applicant for feigning a sore back to avoid enlisted service.  His punishment consisted of forfeiture of $50.00 per month for 2 months and to be placed in a correctional facility for 30 days.

4.  On 27 September 1971, charges were preferred against the applicant for the following:  

* Charge I, willfully and wrongfully breaking open a coffee vending machine with an entrenching tool
* Charge II, stealing US currency from a vending machine in the amount of $7.00
* Charge III, for being disorderly in quarters 

5.  On 5 October 1971, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his behalf.

7.  On 12 November 1971, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.


8.  The applicant's DD Form 214 shows that he was separated with an undesirable discharge, characterized as under conditions other than honorable, on 27 October 1971.  The applicant had completed 9 months and 27 days of active service.

9.  The applicant provided two supporting statements from friends.  The author of one statement said that she has known the applicant for approximately eight years and he was a loyal husband and an all around good person.  She stated that the applicant and his wife opened their home to her when she was in need.  The supporting statement from another friend attested to the applicant's patriotism and desire for self improvement.  He said the applicant was devastated when he was discharged from the Army because he had often talked about making the Army a career.  He offered that since then, the direction of the applicant's life has been admirable.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded because he was unjustly charged with a crime he did not commit.  However, there is no evidence and the applicant has not provided any to substantiate his claim.  
2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  Based on this 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 renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, MO, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  ___x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the 

CMSD-St. Louis administratively correct item 17c of his 27 October 1971 DD Form 214 to show his date of entry as 31 December 1970. 




      _______ _   _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)                                         AR20090020738





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ABCMR Record of Proceedings (cont)                                         AR20090020738



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