IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100019157 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states, in effect, he feels he was pushed into asking for a discharge.  Everyone else simply received an Article 15, Uniform Code of Military Justice (UCMJ) punishment.  He states he was a good Soldier.  He was young and he was afraid of the military police.  Now, all he can think about is how unjustly he was treated.

3.  The applicant provides no additional evidence or argument to substantiate his request.

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, a prior member of the Army National Guard, enlisted in the Regular Army on 24 February 1984.  

3.  He completed training as an artilleryman and was stationed in Germany.  He progressed normally and was advanced to specialist/E-4 on 1 October 1984 and was promoted to sergeant/E-5 on 27 April 1986.

4.  On 10 April 1987, charges were preferred against the applicant for conspiracy and selling U.S. cigarettes (four cartons on each of three different dates) on the black market in violation of a lawful general regulation.  

5.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he understood he would receive a UOTHC discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veteran's benefits administered by the Veterans Administration.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated he had received legal advice but the request had been made voluntarily and it reflected his own free will.

6.  On 27 April 1987, the applicant submitted a memorandum to the division commander through the chain of command.  He described his service accomplishments and pointed out that his record contained no discreditable evidence.  He also noted that he had been married 8 years and had two children, ages 6 years and 3 years.  He requested a general discharge.

7.  The Staff Judge Advocate reviewed the case and recommended that the charges and specifications be referred to a special court-martial empowered to adjudge a bad conduct discharge.  The commander so referred the case.

8.  The chain of command recommended approval of the applicant's request with a UOTHC discharge.

9.  The commanding general approved the applicant's request and directed that a UOTHC discharge be issued.  On 29 May 1987, the applicant was separated with a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

10.  There is no indication that the applicant ever applied to the Army Discharge Review Board for upgrade his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  The Table of Maximum Punishments of the Manual for Courts Martial shows that each violation of a lawful general regulation is punishable by a punitive discharge, a forfeiture of all pay and allowances and confinement for 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he believes he was pushed into asking for a discharge.  Everyone else simply received an Article 15.  He was a good Soldier; however, he was young and he was afraid of the military police.  Now, all he can think about is how unjustly he was treated.

2.  The applicant's behavior violated international agreements and military regulations.  His offenses brought discredit upon the Army and its Soldiers and its noncommissioned officer corps. 

3.  Compared to the punishment he could have received had he been sentenced due to a court martial conviction he was not treated harshly at all.

4.  The discharge proceedings were conducted in accordance with the laws and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20100019157



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ABCMR Record of Proceedings (cont)                                         AR20100019157



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