IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100012027 


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 general under honorable conditions.

2.  The applicant states, in effect, that his discharge was inequitable because it was based on him being a postal clerk in Korea when a valuable piece of outgoing mail was lost after it left his facility.  He was the last person who signed the chain of custody, and the mail never arrived at its final destination.  The value of the contents of the mail was $33,000.00.  He had no choice but to accept responsibility for the mail.

3.  The applicant provides no 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 that he enlisted in the Regular Army on 16 June 1982 for a period of 3 years.  The applicant completed the required training and was awarded military occupational specialty 71L (Administrative Specialist).  The highest grade he attained was pay grade E-3.

3.  On 21 March 1984, court-martial charges were preferred against the applicant for, on or about 31 October 1983:

* stealing ten money orders/vouchers, of a value of about $894.00
* stealing one blank money order, customer’s receipt, and voucher of the same value
* willfully and unlawfully removing a public record, to wit, 10 money order vouchers/numbers from the post office

4.  On 1 April 1984, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions 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.  In his request for discharge, the applicant acknowledged that he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood that if his discharge request was 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

5.  On 17 April 1984, the applicant’s unit commander recommended approval for his request for discharge.  On 20 April 1984, the commanding general approved the request for discharge and directed that the applicant be discharged from the service with the grade of Private E-1 and issued a discharge certificate under other than honorable conditions.

6.  On 9 May 1984, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was 

discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions discharge.  The applicant completed a total of 1 year, 10 months, and 24 days of creditable active military service.

7.  Army Regulation 635-200 (Personnel Separations) 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.  An under other than honorable conditions discharge is normally considered appropriate.

8.  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 discharge should be upgraded to a general discharge because when the packet did not arrive at its destination and he was the last one to sign the chain of custody, he had to accept the responsibility was carefully considered; however, there is insufficient evidence and he did not provide any evidence that shows the discharge he was issued was inequitable or unjust.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. 
After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of a trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.

3.  The evidence of record confirms the applicant's separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.  Therefore, there is no basis for granting his request.

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)                                         AR20100012027



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ABCMR Record of Proceedings (cont)                                         AR20100012027



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