IN THE CASE OF:	  

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20110021695 


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 a general under honorable conditions discharge (GD) or honorable discharge (HD).

2.  The applicant states:

	a.  a detailed summary of his military history indicating he was court-martialed after confessing to charges he was accused of;

	b.  he made full restitution to all parties concerned because he never spent the money;

	c.  later, in the spring of 1984, Criminal Investigation Division (CID) agents informed him of two checks that were signed and cashed during the time of his previous charges for which he had already been convicted;

   d.  his company commander argued, on his behalf, he was being punished twice for the same offense and recommended he receive a GD when the applicant was being considered for a Chapter 13 discharge;
   
   e.  since his discharge, he has made every effort to be a good steward to his community and fellowman and has worked for federal government agencies which includes the Department of Veteran Affairs, Department of the Navy, National Association of Securities Dealers, and the Securities Exchange Commission;
   f.  he has volunteered as a fireman, for the boys and girls scouts, baseball and soccer leagues, and the chamber of commerce, in an attempt to amend the wrongs he committed;
   
   g.  the unfortunate events in his life which includes his two attempted suicides, his parents deaths and his divorce from his second wife; and
   
   h.  he has been counseled and medically treated to address the demons he faces and the shame of the mistakes he has made and sincerely request consideration be given to upgrade his UOTHC discharge to a GD or HD.
   
3.  The applicant provides the indexed list of documents as indicated on his application.

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 military record shows he initially enlisted in the Regular Army on 5 July 1978, and served until he was honorably discharged on 13 May 1982, in the rank of sergeant (SGT).  He completed 3 years, 10 months, and 9 days of creditable active duty service.

3.  On 14 May 1982, the applicant reenlisted in the RA.  He was trained in and held military occupational specialty 96C (Interrogator).

4.  On 13 March 1984, pursuant to his pleas, a special court-martial (SPCM) convicted the applicant of violating Article 121 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating U.S. currency from the Fort Monmouth Officer's Club, Fort Monmouth, New Jersey on the following dates in the amounts indicated:

* 9 September 1983		($250.00)
* 10 September 1983			($240.00)
* 17 September 1983			($400.00)
* 30 September 1983			($494.41)

The resultant sentence was a reduction to private first class (PFC) and forfeiture of $250.00 pay per month for six months.  On 13 April 1984, the court martial convening authority approved the sentence and ordered it duly executed with the exception of the forfeiture of $250.00 pay per month in excess of 2 months which was suspended for 12 months.

5.  On 8 November 1984, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for four specifications of violating Article 121 of the UCMJ as indicated:

* stealing a certain check issued by financial institutions on 10 July 1983
* stealing a certain check issued by financial institutions on 8 October 1983
* stealing $100.00 from the Fort Monmouth Officers Club on 10 July 1983
* stealing $1,723.30 from the Fort Monmouth Officers Club on 8 October 1983

6.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

8.  On 26 December 1984, the separation authority approved the applicant's request for discharge and directed he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.

9.  On 2 January 1985, the applicant was discharged accordingly in the lowest enlisted rank of PVT/E-1.  His DD Form 214 shows he completed a total of 6 years, 5 months and 28 days of active creditable military service.

10.  On 22 October 1993, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

11.  The applicant provides a VA rating decision which shows he was granted a 30 percent service connected disability rating on 12 August 2011.  He also provides numerous medical record documents showing the medical treatment he received both during and subsequent to his military service.

12.  The applicant provides multiple certificates and letters which documents the awards and commendations he received and the military and civilian education he completed during and subsequent to his military service.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

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

	b.  Paragraph 3-7a provides 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.

	c.  Paragraph 3-7b of provides 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 contends his UOTHC discharge should be upgraded to a GD or HD.


2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for stealing funds.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering the length of his AWOL, his service clearly did not support a GD or HD at the time of his discharge and it does not support an upgrade now.

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)                                         AR20110021695



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ABCMR Record of Proceedings (cont)                                         AR20110021695



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