IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001260 


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 (UOTHC) be upgraded to an honorable discharge.

2.  He states he spent 7 years in the Army serving under other commanders and received nothing but good ratings.  He made one mistake under the commander at Fort Lewis, WA, which could have been taken care of within the unit.

3.  He contends his commander was not happy with his tank crew because he could not out shoot them in any of the gunneries in question and his commander had no problem expressing this to his subordinates.

4.  He adds he committed one little petty theft and he knows that his commander pulled strings with the judge advocate general officer to make him back out of representing him.  This was his first time getting into any type of trouble in his career.

5.  The applicant states if he would have been given a second chance he would have served again.  He received special recognition for performance of his duties.  He worked with the Special Olympics and the military police on breathalyzers, blood tests, and urinalysis testing.  He also served as a drug and alcohol counselor and combat lifesaver.



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.  He enlisted in the Regular Army on 2 October 1981.  After the completion of training, he served in military occupational specialty 19E (Armor Crewman).

3.  A review of his DA Form 2-1 (Personnel Qualification Record – Part II) shows:

* the highest rank/pay grade he attained while serving on active duty was specialist five/E-5
* he completed the Primary Leadership Development Course
* he earned two Army Good Conduct Medals and an Army Achievement Medal
* he served one overseas tour in Germany and one in Korea

4.  The applicant’s record contains a DD Form 458 (Charge Sheet) which shows he was charged with stealing the following merchandise from the Army and Air Force Exchange Service (AAFES) totaling $165.20:

* one bottle of cologne
* three pairs of cuff links
* one Nintendo video game
* one fishing reel
* one spool of fishing line
* one package of bait

5.  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.  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 authorized the imposition of a bad conduct or dishonorable discharge.
6.  Prior to making his request, he 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 also stated he understood that if his discharge request were approved, 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.  He further indicated he understood he could encounter substantial prejudice in civilian life because of a discharge UOTHC.

7.  After being advised of his rights, the applicant submitted a statement on his behalf.

	a.  He wanted to appeal the serious mistake he had made.  He was truly sorry and regretted what he had done.  Everything that had happened and the people it affected had really opened his eyes to see things more clearly.  He was in great financial debt at the time and took the cuff links and fishing gear as a gift to show his gratitude to his father-in-law for buying his children a Nintendo game console.

	b.  He also realized he had to be punished for what he did and had concluded that it was very wrong to do such a thing.  In his 8 years of military service he had never been punished for anything.

	c.  He requested that he be punished and not his family.  He stated he had five children who ranged in ages from 6 through 10 years of age who depended on him.  He understood it was not a good way to leave the military and also understood how much it could hurt his ability to take care of his family once he was discharged.

	d.  He added that he had filed action to consolidate all of his bills and truly regretted what he had done.  It was hard for him and his family to survive on $696.00 a month but he only had a few more months to pay off his consolidation loan.

8.  His chain of command recommended approval of his request for discharge for the good of the service and his discharge UOTHC.

	a.  His company commander noted the applicant had been an excellent duty performer and his current offense was the only isolated incident of misconduct.  Confinement was not warranted, especially considering his financial and family situation.
	b.  The battalion commander stated that confinement and forfeiture of pay would be counterproductive; a discharge UOTHC and reduction to the rank/pay grade private/E-1 were sufficient punishment.

	c.  His brigade commander concurred with the battalion commander’s recommendations.

9.  On 9 November 1989, the appropriate approval authority withdrew the court-martial charges and approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be discharged UOTHC and be reduced to the grade of private/E-1.

10.  Accordingly, on 28 November 1989, he was discharged UOTHC 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 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 1 month, and 27 days of net active service.

11.  His record does not show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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 the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	a.  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.

	b.  Paragraph 3-7b states 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 was charged with stealing merchandise from AAFES.
2.  Rather than face court-martial, he opted to submit a request for discharge for the good of the service in lieu of trial by court-martial.  His request for discharge was approved.

3.  Accordingly, 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.

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 the applicant was aware of this prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, he is not entitled to either an honorable or 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)                                         AR20120001260



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ABCMR Record of Proceedings (cont)                                         AR20120001260



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