IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013574 


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 (UOTHC) discharge to a general discharge (GD).

2.  The applicant states:

a.  he was falsely accused of stealing a stereo from the barracks; however, he
had nothing to do it;

	b.  he did not want a hearing because he wanted to get out of the Army due
to an injury he previously sustained; and

	c.  he was told the stereo was recovered subsequent to his discharge from the Army.

3.  The applicant provides a self-authored statement.

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 record shows he initially enlisted in the Regular Army (RA) on 22 June 1972.  He completed training and he was awarded and served in military occupational specialty (MOS) 11E (Armor Crewman).  He was honorably discharged for the purpose of immediate reenlistment on 24 March 1974.  The DD Form 214 issued at that time shows he completed 1 year,
9 months, and 3 days of total active service.

3.  On 25 March 1974, the applicant reenlisted in the RA in the rank of specialist (SP4) in the same MOS.

4.  On 4 January 1978, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following two Articles of the Uniform Code of Military Justice (UCMJ):

* Article 121, for theft of a Soldier’s private property valued at $829.00
* Article 108, for selling military property of the United States valued at $126.72 without authority

5.  On 6 February 1978, the applicant consulted with legal counsel and he 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 UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged he understood that 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.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge and elected to submit a statement in his own behalf.

7.  In his statement he indicated that because of his offenses, he felt it was better for him to leave military service and requested he receive a good discharge.

8.  On 21 February 1978, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed he receive a UOTHC Discharge Certificate.  On 28 February 1978, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant upon his discharge confirms he was separated under the provisions of Army Regulation 635-200, chapter 10, with a UOTCH Discharge Certificate.  It also shows he completed 3 years, 11 months, and 4 days of net active service this period for a total of 5 years, 8 months, and
7 days of active service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 contends his UOTHC discharge should be upgraded to a GD.

2.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for violating 

Articles 121 and 108 of the UCMJ for stealing a Soldier's private property and selling military property without authority.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  He submitted a statement with his request for discharge, but he did not indicate in his statement that he did not take the stereo.

3.  The applicant’s offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100013574



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ABCMR Record of Proceedings (cont)                                         AR20100013574



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