IN THE CASE OF:	  

		BOARD DATE:	 21 June 2011

		DOCKET NUMBER:  AR20100028919


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 an honorable discharge (HD).

2.  The applicant states he feels it is the right thing to do.

3.  The applicant provides a 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.  On 13 December 1988, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 21 February 1989, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 
22 February 1989.
3.  The applicant remained on active duty through a series of reenlistments.  He rose to the rank of sergeant (SGT)/E-5 on 28 June 1996.

4.  The applicant's records contains a record of nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice, dated 3 November 2000, for conspiring to steal and stealing property valued at $250.00 from the Fort Sill Army and Air Force Exchange Service (AAFES) Shoppette for which he received a reduction to specialist (SPC)/E-4 and a forfeiture of $796 pay for 2 months ($296 pay for 2 months and 45 days of extra duty were suspended to be automatically remitted if not vacated before 1 February 2001).

5.  On an unknown date, court-martial charges were preferred against the applicant.  Although documentation is unavailable, the available evidence indicates he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

6.  On 11 July 2001, the applicant was tried by a special court-martial at Fort Sill, OK.  A summary of the offenses, pleas, and findings are:

Charge
Article, UCMJ
Specification
Offense(s)
Pleas
Findings
I
132

Making a false and fraudulent claim in the amount of $2804.49 on 16 January 2001
G
G
II
107
1
Making a false official statement on 30 January 2001
G
G
7.  Upon conviction, the applicant was sentenced to reduction to the rank of private (PV1)/E-1, a forfeiture of $300.00 pay for 6 months, and a bad conduct discharge (BCD).

8.  The court-martial convening authority disapproved the findings of guilty and the sentence.  The applicant's request for discharge pursuant to the provisions of chapter 10, Army Regulation 635-200 was approved on 26 October 2001 for the issuance of a UOTHC discharge.  The automatic forfeiture of $300 pay was waived from 25 July 2001 to 21 January 2002 with direction that such monies be paid to the applicant's qualified family members.  The sentence to confinement was deemed served.  The charges and specifications were dismissed.  All rights, privileges, and property of which the applicant was deprived by virtue of the sentence which was set aside was restored.

9.  On 19 November 2001, the applicant was issued a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.  He had completed 12 years, 8 months, and 28 days of active service.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade on 26 June 2002.  The ADRB, after considering his case on 16 October 2002, denied his request.

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 (GD) is authorized, a discharge UOTHC is normally considered appropriate.

12.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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.

	b.  Paragraph 3-7b states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade to an HD.

2.  The applicant was a former noncommissioned officer with more than 12 years of service when he received an Article 15 for stealing merchandise worth $250 from the AAFES Shoppette.  Court-martial charges were preferred against him for making a false and fraudulent claim and making a false official statement, and he admitted guilt and requested discharge in lieu of trial.

3.  The applicant's voluntary request for discharge 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.  There is no indication that the request was made under coercion or duress.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge (BCD) that he might have received. 

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)                                         AR20100028919



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028919



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1