IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100023093 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states, in effect, his wife was being unfaithful and trying to give him a reason for divorce.  He was accused of the theft of a credit card by one of his clerks and after he was discharged he found out the clerk was an acquaintance of his wife.  When he was given the choice of a court-martial or discharge he chose the discharge to get away from his wife.  He did not realize he would be reduced from sergeant first class/pay grade E-7 to private/pay grade E-1 until he was signing the papers.

3.  The applicant provides no additional 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.  He enlisted in the Regular Army on 28 August 1967.  He immediately reenlisted on 10 June 1969 and was honorably discharged on 8 September 1972.  He then enlisted in the Regular Army on 22 November 1972.  He immediately reenlisted on 25 November 1975 and 5 September 1979.  He was promoted to sergeant first class on 13 August 1982.

3.  His complete separation processing package was not available for review.  The following information was taken from Army Discharge Review Board (ADRB) Docket AD83-02577, dated 26 April 1984.  This information shows on:

   a.  19 November 1982 - he was charged with stealing a J.C. Penney credit card.

   b.  13 January 1993 - he consulted with counsel, requested discharge for the good of the service, and did not make a statement in his own behalf.

   c.  20 January 1983 – a Mental Status Evaluation was completed (the results are not available for review).

   d.  3 February 1983 – the approval authority approved the applicant's request for discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

4.  On 9 February 1983, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service with an under other than honorable conditions discharge in pay grade E-1.  He had completed 3 years, 5 months, and 5 days of net active service this period and 10 years and 7 days of prior active service.

5.  The applicant applied to the ADRB to upgrade his discharge.  On 26 April 1984, the ADRB denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that his service was properly characterized as under other than honorable conditions.  

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

	a.  Paragraph 1-13 states when a Soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest pay grade.
	b.  Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment.

7.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.  In the absence of evidence to the contrary, it is presumed the applicant voluntarily requested discharge, admitted his guilt, and acknowledged he understood he could receive an under other than honorable conditions discharge. By requesting a discharge, he negated the possibility of determining his innocence at a court-martial.  His reduction in grade was based on the characterization of his service.

2.  It is presumed the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  

3.  A review of his last period of service shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel based on the seriousness of the offense he was charged with.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20100023093



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100023093



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1