IN THE CASE OF:	  

		BOARD DATE:	    19 April 2012

		DOCKET NUMBER:  AR20110023598 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he served in the Army for 2 years and 6 months
* he reenlisted 6 months prior to his end of expiration of term of service date
* he received an Army Good Conduct Medal and Army Commendation Medal
* he's been sober for 30 years

3.  The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty and Report of Separation from Active Duty).

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 record shows he enlisted in the Regular Army on 14 March 1977.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 75B (Personnel Administrative Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 August 1979 for disrespecting an officer and noncommissioned officer.

4.  On 27 June 1980, charges were preferred against the applicant for stealing U.S. currency and breaking and entering with intent to commit larceny.

5.  On 18 July 1980, the applicant consulted with 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 an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  At the time of his request for discharge he indicated he was going before a court-martial for a robbery he committed.  He indicated it was best for him and the U.S. Army for him to get out of the Army on a chapter 10 discharge.

8.  On 29 July 1980, the separation authority approved the applicant's request for discharge and directed his reduction to private/E-1 and issuance of an under other than honorable conditions discharge.

9.  On 5 August 1980, the applicant was discharged accordingly.  His DD Form 214 for this period of service shows he completed 3 years, 4 months, and 22 days of total creditable active military service.

10.  On 21 September 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

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.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to be without merit.

2.  His record includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ.

3.  His record also shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline which includes theft and larceny, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant 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 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)                                         AR20110023598



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ABCMR Record of Proceedings (cont)                                         AR20110023598



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