IN THE CASE OF:	

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110021255 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  He states he was accused of using another Soldier's debit card to withdraw money from his account.  He contends he did withdraw $40.00, but with the approval of the Soldier.  The Soldier gave him the debit card and personal identification number.  His spouse at the time and the Soldier were seen kissing and holding hands the day after he used the debit card.

3.  He adds that when he approached the Soldier, who was also a noncommissioned officer, he told him he was going to report the incident to the chaplain.  The Soldier in turn told the applicant he would be going to jail for stealing his debit card.  He states he kept his silence thinking the accusation would go away; however, he went to jail and was processed out of the Army for $40.00 worth of adultery.  

4.  The applicant provides:

* A DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* An Army Achievement Medal (AAM) certificate 
* A printout from the National Archives and Records Administration (NARA)



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 provided a DD Form 214 which shows he was honorably released from active duty 31 August 1991, and was transferred to his Army National Guard (ARNG) unit after serving 9 months and 10 days in support of Operation Desert Shield/Storm. 

3.  After having prior service in the ARNG, he enlisted in the Regular Army on 
30 November 1993.  

4.  He provided an AAM certificate which shows he received this award for meritorious achievement from 3 to 27 January 1994 while serving as a Petroleum Supply Specialist during the battalion's National Training Center rotation.  

5.  The applicant's record contains a DD Form 458 (Charge Sheet), dated 
25 May 1995.  This document shows he was charged with three specifications:

* Stealing $40.00 on 14 April 1995 from Sergeant (SGT) PR
* Stealing a Gold Key debit card, valued at less than $100.00 from SGT PR on 14 April 1995
* Stealing $41.00 on 15 April 1995 from SGT PR

6.  On 9 June 1995, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge UOTHC, and of the rights available to him.  He voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service, in lieu of trial by court-martial.  

7.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.
He also indicated he was making the request under his own free will and understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  After being advised of his rights, the applicant elected not to submit a statement on his behalf.

8.  The applicant's entire chain of command recommended trial by general court-martial.  However, on 16 June 1995, the general court-martial convening authority approved the applicant's request for discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be discharged UOTHC within 10 working days from the date of his approval.  

9.  On 7 July 1995, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial.  His DD Form 214 shows he completed 2 years, 9 months, and 21 days of total active service and 4 years, 5 months, and 29 days of prior inactive service.  

10.  His record does not contain any acts of valor or special recognition and does not show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge UOTHC is normally considered appropriate.

	b.  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.  

   c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded because he was unjustly discharged from the Army is not supported by the evidence of record. 

2.  The evidence of record shows he was charged with three specifications of stealing money from another Soldier which is a violation of the Uniform Code of Military Justice (UCMJ) for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  At the time of his request he opted not to submit any statement on his own behalf.  

3.  His request was approved and he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

4.  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 UOTHC and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  The applicant's nine months of service in support of Operation Desert Shield/Storm and his AAM have been noted; however, his service after these events did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  As a result, he is not entitled to either an honorable or a general 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 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)                                         AR20110021255





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ABCMR Record of Proceedings (cont)                                         AR20110021255



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