IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100023660 


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 discharge under other than honorable conditions (UOTHC) to a general discharge (GD) under honorable conditions.

2.  The applicant states consideration should be given to upgrading his UOTHC discharge to allow him to receive Department of Veterans Affairs (VA) benefits to better his life and to get the proper help he needs.

3.  The applicant provides a copy of his 1 November 1975 DD Form 214 (Report of Separation from Active Duty) from the U.S. Marine Corps.

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 enlisted in the U.S. Marine Corps on 2 November 1973.  On 1 November 1975, he was honorably released from active duty and transferred to the U.S. Marine Corps Reserve.  His DD Form 214 shows he completed 2 years of creditable active duty service.

3.  On 5 October 1982, he enlisted in the Regular Army.  He was trained in, awarded, and served in military occupational specialty 05B (Radio Operator).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he entered active duty in the rank of private first class (PFC)/E-3 in item 33 (Appointments and Reductions) and this was the highest rank he attained during this period of service.  It also shows he was reduced to private (PVT)/E-1 on 14 July 1983.

5.  The applicant's record documents no acts of valor or significant achievement.

6.  On 6 June 1983, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 121 of the Uniform Code of Military Justice (UCMJ) for stealing U.S. currency in the amount of $200.00 from a fellow PFC.

7.  On 8 July 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge.

9.  On 14 July 1983, the separation authority approved the applicant's request for discharge and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.  He also directed that the applicant be reduced to the lowest enlisted rank of PVT/E-1.

10.  On 19 July 1983, the applicant was discharged accordingly.  His DD Form 214 shows he completed 9 months and 15 days of active military service for the period covered.

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

12.  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.  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 discharge (HD) or a GD is authorized, at the time of the applicant's separation the regulation provided for the issuance of a UOTHC discharge.

13.  Paragraph 3-7b of Army Regulation 635-200 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 HD.  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 requests an upgrade of his UOTHC discharge to a GD.

2.  The evidence of record shows the applicant was discharged due to the commission of an offense punishable under the UCMJ with a punitive discharge (stealing money from a fellow Soldier).  After consulting with legal counsel, the applicant voluntarily requested discharge 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.

3.  The applicant's misconduct and/or crime committed against another Soldier rendering his service unsatisfactory below that meriting a GD at the time of his discharge from the Army remains current.  Therefore, there is no basis upon which to grant him an upgrade of his discharge.


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 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)                                         AR20100023660



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ABCMR Record of Proceedings (cont)                                         AR20100023660



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