IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021979 


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.

2.  The applicant states, in effect, he was improperly discharged because it was a one-sided affair.  He contends everything in his case was based on the Government's point of view and there was no report from the State law enforcement personnel who actually found the weapon.  He also contends the time he served should be taken into consideration.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 on 15 May 1974.  He completed initial entry training and was awarded military occupational specialty 51B (Carpenter).  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.

3.  The applicant's record shows throughout his military service he was awarded or authorized to wear the National Defense Service Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  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) on two occasions for offenses including:

* absenting himself from his unit without authority
* disobeying a lawful command from a commissioned officer

5.  On 8 September 1976, a DA Form 2800 (Criminal Investigation Command Report of Investigation) pertaining to the applicant was forwarded to his unit commander so the appropriate disciplinary or administrative action could be taken.  This report showed an investigation conducted by the New Orleans Police Department, Louisiana, and the U.S. Treasury Bureau of Alcohol, Tobacco, and Firearms (ATF) revealed the applicant stole an M16A1 rifle [a fully automatic rifle] and transferred that weapon to Mr. E____ (a civilian) around November 1975.  The weapon was recovered in Mr. E____'s residence during a search conducted pursuant to a search warrant executed by officers of the New Orleans Police Department.  Copies of the following documents accompanied the report and were listed as exhibits:

	a.  two Field Arrest Reports from the New Orleans Police Department for Mr. E____ and his spouse;

	b.  a Department of the Treasury Form 4176 (Waiver of the Right to Remain Silent and of Right to Advice of Counsel) reflecting Mr. E____'s waiver of his legal rights;

	c.  a statement from Mr. E____ made to agents of the ATF in which he related he had received the M16A1 rifle from the applicant;

	d.  a waiver certificate reflecting the applicant's waiver of legal rights;

	e.  an Agent Investigation Report (AIR) prepared by a special agent detailing the oral interview of the applicant, his subsequent request for legal counsel and termination of the interview, and that his legal counsel had advised him to make no further statements; and

	f.  an AIR prepared by a special agent covering the notification of the recovery of the M16A1 rifle, the identification of the applicant as the subject, and information from another special agent that the ATF would prosecute the applicant if the U.S. Army failed to do so.

6.  A DD Form 458 (Charge Sheet), dated 29 November 1976, shows the applicant was charged with one specification of violation of Article 121 of the UCMJ and his chain of command recommended he be tried by a special court-martial empowered to adjudge a bad conduct discharge.  The specification was for larceny of Government property in the form of an M16A1 rifle.

7.  On 29 November 1976, 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.  He acknowledged he understood that if his discharge request were 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 company, battalion, and brigade-level commanders all recommended disapproval of his request based upon the seriousness of the offense and the destructive potential of a fully automatic weapon in the wrong hands.

9.  On 14 December 1976, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade and issued a DD Form 258A (Undesirable Discharge Certificate).

10.  On 22 December 1976, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued an Undesirable Discharge Certificate.  He had completed 2 years, 7 months, and 8 days of creditable active military service.

11.  On 17 June 1977, the applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge from undesirable to honorable.  On 28 August 1979, the ADRB, after careful consideration of his military records and all other available evidence, informed the applicant that he was properly and equitably discharged.  Accordingly, his request for an upgrade of his character and/or reason for his discharge was denied.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 at any time after the charges have been preferred.

13.  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's contention that his undesirable 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 two occasions.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The applicant's allegation that it was a one-sided affair is unsubstantiated. The evidence clearly shows evidence from both the New Orleans Police Department and the ATF was taken into consideration in the applicant's case.  Additionally, it is apparent the U.S. Army was granted jurisdiction over the applicant's case with the understanding that the ATF would prosecute him if the U.S. Army failed to do so.

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 prior to the offense is not sufficient to mitigate the misconduct that led to his final discharge.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or a 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)                                         AR20090021979



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ABCMR Record of Proceedings (cont)                                         AR20090021979



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