IN THE CASE OF:	  

		BOARD DATE:	    10 July 2012

		DOCKET NUMBER:  AR20120001007 


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 to a general or honorable discharge.

2.  The applicant states he was stationed in Germany and some guys in his unit broke into the post exchange (PX) and the commander could not prove who did it so he discharged some members including himself without a trial or court-martial.  He further states that he is a 52 year old construction worker who raised two children with seven grandchildren and is happily married.  He also states that he has been a good citizen and he did nothing wrong while in Germany.  He was just a young Soldier from Kansas with the wrong crowd. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 enlisted in the Regular Army on 23 May 1979 for a period of 4 years.  He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Germany on 15 September 1979.

3.  On 24 December 1979, the applicant was apprehended by Military Police (MP) inside the stairwell of the building of the PX at 2200 hours and the door had been forced open.  The applicant denied knowledge of the break-in. 

4.  After an investigation was conducted by U.S. Army Criminal Investigation Command officials, evidence was obtained which showed that five Soldiers participated in the break-in and the applicant, who was one of the five, served as the lookout for the MPs.

5.  On 2 June 1980 charges were preferred against the applicant for unlawfully entering the PX with intent to commit larceny.

6.  On 30 June 1980, after consulting with counsel, the applicant submitted a request for 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 indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement or explanation in his own behalf.

7.  On 11 July 1980, the applicant’s defense counsel submitted a statement indicating that the applicant and two others accused of the same offense agreed to testify truthfully for the government should any case involving the co-accused go to trial.
 
8.  The applicant’s chain of command recommended approval of his request and indicated that he had been a constant disciplinary problem, continually absented 


himself from his place of duty, required constant supervision, and he had no respect for authority.

9.  On 9 September 1980, the appropriate authority (a lieutenant general) approved his request for discharge and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on 
29 September 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He had served 1 year, 4 months, and 7 days of active service.

11.  On 8 March 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable.  He cited as the basis for his request that he had paid his debt to society by being denied Veterans Administration benefits and it had made his life hard to bear.

12.  On 6 May 1982, after reviewing all of the facts and circumstances of his case, the ADRB determined that under the circumstances his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

13.  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 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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions have been noted; however, given the serious nature of the charges against him and his short undistinguished record of service, his service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120001007





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ABCMR Record of Proceedings (cont)                                         AR20120001007



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