BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029161 


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:

* The nature of his discharge prevents him from improving his current situation
* Opportunities available to him with an upgraded discharge would enable him to improve his living situation and become a contributing member of society
* He is currently homeless and unemployed
* He cannot afford housing, retraining, or medical care
* It has been almost 30 years since his discharge
* He would like the Board to consider his service up to the point of his discharge and his awards, ribbons and commendations 

3.  The applicant provides no documentary evidence. 

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 19 October 1976 for a period of 3 years.  He completed his training and was awarded military occupational specialty 31M (multichannel communications equipment operator).  He served in Korea from 
14 February 1978 to 17 February 1979.  On 11 June 1979, he was honorably discharged for immediate reenlistment.  He reenlisted on 12 June 1979 for a period of 3 years.  He attained the rank of sergeant on 17 September 1980.  

3.  On 22 December 1980, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave from 14 December 1980 to 
21 December 1980.

4.  He arrived in Germany on 22 December 1980.

5.  On 4 August 1981, charges were preferred against the applicant for conspiring to commit robbery, two specifications of robbery, unlawful entry with intent to commit larceny, larceny, and damaging a soda machine.

6.  On 1 September 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood that he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  



7.  The applicant elected to make a statement in his own behalf (his defense counsel submitted a statement)  In summary, counsel stated the applicant deeply regretted his actions and reluctantly conceded that further military service in his military occupational specialty was unlikely if not impossible under the circumstances.  He also urged the commander to consider the intoxicated state of the participants in the break in and theft of the soda machine.

8.  On 14 October 1981, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

9.  He departed Germany on 28 October 1981.

10.  He was discharged under other than honorable conditions on 29 October 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 5 years and 4 days of creditable active service with 7 days of lost time.  His awards included the Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 1, Overseas Service Ribbon, Army Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar.. 

11.  There is no evidence the applicant applied to the Army Discharge Review Board for 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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.



14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends his discharge prevents him from improving his current situation (homeless and unemployed).  However, discharges are not upgraded for the purpose of enhancing employment opportunities.
 
2.  He contends it has been almost 30 years since his discharge.  However, the passage of time is normally not a basis for upgrading a discharge.

3.  His prior honorable discharge and awards and decorations were carefully considered.  However, he was a sergeant and his record of service during his last enlistment included one NJP for AWOL and serious offenses (robbery and unlawful entry with intent to commit larceny) for which court-martial charges were preferred.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

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

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20100029161





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029161



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1