IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009931 


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 (UOTHC) discharge.

2.  The applicant states he was young and very dumb and requests an upgrade of his discharge.  He claims he thought he had the money in his account and to be honest he just did not keep a record of his spending.

3.  The applicant provides no documentary 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 record shows after having served in the United States Marine Corps from 10 August 1982 through 9 August 1985, he enlisted in the Regular Army on 10 September 1985.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and specialist four (SP4)/E-4 is the highest rank/grade he attained while serving on active duty.

3.  The applicant’s record shows he earned the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 September 1985, for failure to repair.

5.  On 16 August 1988, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 123a of the UCMJ by:

* uttering nine bad checks between 7 February and 4 April 1988 totaling $914.75, with the intent to defraud
* by uttering a bad check on or about 7 March 1988 in the amount of $120.00, with the intent to defraud
* uttering a bad check on or about 1 April 1988 in the amount of $190.00, with the intent to defraud

6.  On 14 September 1988, the applicant consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of a UOTHC discharge and of the rights and procedures available to him.

7.  After receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge, the applicant acknowledged his understanding that by requesting discharge he was admitting he was guilty of the offense with which he was charged or of lesser included offenses contained therein which authorized the imposition of a bad conduct or dishonorable discharge.  He further confirmed he did not desire further rehabilitation because he had no desire to perform further military service.

8.  In his request for discharge, the applicant also acknowledged that if his discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

9.  On 16 September 1988, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge.  On 
5 October 1988, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 3 years and 26 days of active service during this period of enlistment.

10.  On 31 October 1991, after carefully considering the applicant’s case, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable and it unanimously voted to deny his request for an upgrade of his discharge.

11.  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.

12.  Paragraph 3-7b of the same regulation 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was young and dumb at the time has been carefully considered.  However, this factor is not sufficiently mitigating to support his request.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily 


requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement that would have supported the issuance of an honorable or a general discharge by the separation authority at the time of his discharge or that would support an upgrade at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

4.  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)                                         AR20100009931



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ABCMR Record of Proceedings (cont)                                         AR20100009931



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