IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030103


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 [P.J.A.] requests his undesirable discharge (UD) be upgraded to a general discharge (GD).

2.  The applicant states he was unjustly charged because he could not have been in two places at the same time.  The Army made an example of him, but he had nothing to do with the crime.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge).

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 records contain three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) which show:

* 31 January 1961 – 13 September 1962, honorable discharge (HD)
* 14 September 1962 – 28 August 1968, HD
* 28 August 1968 [sic] – 5 August 1974, UD

3.  On 30 April 1974, at William O. Darby Kaserne, Germany, 19 cases of cigarettes and a case of cereal were stolen from a van parked in a secure motor pool.  The applicant was involved in the theft.  A Staff Judge Advocate (SJA) summary of the incident states:

…[A]t approximately 0200 hours, 30 April 1974, he [B.A.W.] climbed over the fence and entered the EES motor pool on William O. Darby Kaserne [WODK], began breaking the seals on vans parked there and looked into those vans in an effort to find cigarettes which he could then steal.  He [B.A.W.] further related that after checking several vans, he found one with what he believed to be cigarettes in it and removed the contents (approximately 18 large crates) to an area adjacent to the paint shed behind the 1st Transportation Company billets on WODK and that then, with the help of SP5 [P.J.A.], he secured those crates in the paint shed and in a basement of the 1st Transportation Company billets.

…SP5 [P.J.A.] stated substantially as follows:  that at approximately 0430 hours that morning SP4 [B.A.W.] came to [P.J.A.] apartment and informed him that he, [B.A.W.] had stolen cigarettes from a van in the EES motor pool on WODK and requested [P.J.A.] help in secreting the stolen cases of cigarettes.  SP5 [P.J.A.] further related that he then accompanied [B.A.W.] to an area behind the 1st transportation Company billets on WODK, gave [B.A.W.] a key to unlock the paint shed located there and then helped [B.A.W.] transfer the cases of cigarettes then stacked near that shed into the shed.  According to SP5 [P.J.A.], after the shed was filled, it was locked and two remaining cases of cigarettes were put through a basement window into a shop in the 1st Transportation Company billets.  SP5 [P.J.A.] then related that he transferred those two cases of cigarettes to a storage room (Room 17) in the same building.

4.  The applicant was charged with accessory after the fact – larceny and unlawful entry.


5.  At some point, the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  On 25 July 1974, the general court-martial convening authority approved the applicant's request and directed that he be issued a UD.

6.  The applicant was transferred from Germany to Fort Dix, NJ where, on 5 August 1974, he was given a UD.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 25 April 1975, denied his request.  He reapplied to the ADRB and, on 11 August 1978, the ADRB again denied his request.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

9.  Army Regulation 635-200 provides guidance on characterization of service.

	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.

2.  The applicant was a party to a larceny; he gave a statement in which he implicated himself as an accessory after the fact by helping to secrete the stolen property.

3.  The applicant 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.  His request was approved and he was issued a UD.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, tends to show he wished to avoid the court-martial conviction and the punitive discharge 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)                                         AR20100030103



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ABCMR Record of Proceedings (cont)                                         AR20100030103



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