BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110009980 


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 that his discharge under other than honorable conditions be upgraded.

2.  He states he completed all his required military service; however, he did not get a hearing after helping the U.S. Army Criminal Investigation Command investigate certain matters.  He was also unaware that his discharge could be reviewed for an upgrade with no service time lost.  He contends he would support his country again.

3.  He adds that all of his service documents were stolen after his apartment was searched by investigators.

4.  The applicant provides no additional 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.  His records show he enlisted in the Regular Army on 9 August 1974 for 3 years.  After completion of training, he was awarded military occupational specialty 31E (Field Radio Repairer).  He reenlisted on 14 April 1977 for an additional 4 years of military service.

3.  His records show he accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty at the prescribed time.  His records also show he accepted NJP for disobeying a lawful order from his superior officer not to clear the unit until he had properly cleared all his debts.

4.  On 9 March 1981, court-martial charges were preferred against him for:

	a.  conspiring with another Soldier to steal food valued at $58.03 from a military dining facility and

	b.  stealing food valued at $58.03 from a military dining facility.

5.  On 24 March 1981 after consulting with legal counsel, he voluntarily requested a 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 was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement on his own behalf.

6.  His records show his immediate commander, battalion commander, and group commander supported his request for discharge for the good of the service in lieu of trial by court-martial and recommended he receive a discharge under other than honorable conditions.

7.  The general court-martial convening authority approved the applicant's request for discharge for the good of the service and directed his discharge under other than honorable conditions and reduction to the grade of private/E-1.

8.  On 13 April 1981, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  He completed 6 years, 8 months, and 5 days of total active service.

9.  The highest grade he attained during his period of service was sergeant/E-5.  His military awards include the Army Good Conduct Medal and Air Assault Badge.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  After careful review, the ADRB determined he was properly discharged and denied his request.

11.  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 under the Uniform Code of Military Justice (UCMJ) includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

12.  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.

13.  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.  His request to upgrade his discharge under other than honorable conditions was carefully considered, however, is not supported by the evidence of record.

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows court-martial charges were preferred against him; however, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  His chain of command supported his request and he was discharged accordingly.
3.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

4.  In view of the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110009980



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ABCMR Record of Proceedings (cont)                                         AR20110009980



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