IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012840 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  He states he was young and childish at age 18.  Since his release from prison in August 2009, he has enrolled in school to get his General Educational Development (GED) Diploma and he is taking information technology computer courses.  

3.  He provides copies of his:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* DA Form 2496 (Disposition Form) and Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* State of Texas Certification of Mandatory Supervision

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 27 June 1980, for 3 years.  He did not complete advanced individual training; therefore, he was not awarded a military occupational specialty.  

3.  On 11 August 1980, he accepted nonjudicial punishment under Article 15, UCMJ, for failing to go to his appointed place of duty.  

4.  On 30 September 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Battery A, 4th Training Battalion, U.S. Army Field Artillery Training Center, Fort Sill, OK charging him with larceny of a stereo of a value of approximately $200.00, disobeying a lawful order not to purchase beer, and disobeying a lawful order to report to the charge of quarters.

5.  On 3 October 1980, the applicant's battalion commander recommended that he be tried by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 30 October 1980, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  In doing so, he acknowledged he could be discharged with a bad conduct or dishonorable discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

7.  In a personal statement, he requested that his short period of active service, successful completion of basic training, and the fact that he would become a father in approximately 6 months be taken into consideration as to the type of discharge he should receive. 

8.  On 6 November 1980, the appropriate authority approved his request for discharge for the good of the service and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.
9.  Accordingly, he was discharged on 7 November 1980 in pay grade E-1 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was credited with 4 months and 
11 days of net active service.

10.  There is no indication he 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, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 

12.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  

2.  The evidence of record shows he was charged with larceny and disobeying lawful orders on two occasions.  His battalion commander recommended that he be tried by special court-marital empowered to adjudge a bad conduct discharge. After consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  He has provided insufficient evidence to show his discharge was unjust.  He has not provided sufficient evidence to mitigate the characterization of his service.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an upgrade of his discharge.
4.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed and it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012840



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ABCMR Record of Proceedings (cont)                                         AR20100012840



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