IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100015858 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he should be granted an upgrade of his discharge because at the time of his hearing they took the word of a person convicted of forgery and he believes the individual lied when giving testimony about him.  He goes on to state that he was in the Army for quite a few years and was never in trouble before or after the Army.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army on 23 January 1979 for a period of 4 years, training as a power generator and wheel vehicle mechanic, and assignment to Fort Ord, California.  He completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Ord.

3.  On 23 February 1981, he was transferred to Korea.  He was advanced to pay grade E-4 on 25 September 1981.  He completed his tour of duty in Korea and was transferred to Fort Hood, Texas.

4.  On 19 November 1982, he was convicted by a general court-martial of stealing and selling/bartering an M-3 submachine gun to a civilian at Fort Irwin, California.  He was sentenced to confinement at hard labor for 2 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge (BCD).  He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his sentence.  On 19 July 1983, he was placed on adjudged parole.

5.  On 30 May 1984, the U.S. Army Court of Military Review (USCMR) affirmed only so much of the finding as pertained to stealing the submachine gun (charge II) and affirmed only so much of the sentence as provided for a BCD, confinement at hard labor for 1 year, forfeiture of all pay and allowances and reduction to the pay grade of E-1.

6.  On 4 December 1984, the U.S. Court of Appeals granted the applicant a petition for review.  The case was remanded back to the USCMR and on 31 July 1987 the USCMR set aside the findings of guilty and the sentence and authorized a rehearing on the larceny and wrongful disposition charges.

7.  On 20 January 1988, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

8.  The appropriate authority (a lieutenant general) approved his request on 18 February 1988 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, on 18 February 1988 while in excess leave status, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had 9 years and 26 days of total active service.

10.  There is no indication in the available records to show he ever 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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  The applicant's contentions have been noted; however, after being afforded the opportunity to assert his innocence before a trial by a second court-martial, he admitted guilt and voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  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 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)                                         AR20100015858



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ABCMR Record of Proceedings (cont)                                         AR20100015858



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