IN THE CASE OF:   

		BOARD DATE:   24 July 2012

		DOCKET NUMBER:  AR20120002005 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 13 years of service and all monies were paid back in the amount of $2,430.00.  He also contends his discharge was unjust because he served during Operation Desert Storm putting his life on the line defending the United States and he served proudly with no other problems.

3.  The applicant provides a DD Form 214 and Army Discharge Review Board (ADRB) Record of Proceedings.  

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 15 November 1983 and he was awarded military occupational specialty 13B (Cannon Crewmember) upon completion of initial entry training.

3.  On 18 December 1996, court-martial charges were preferred against him for:

	a.  wrongfully stealing 6 months of Basic Allowance for Quarters (BAQ) entitlements, of a value of about $3,239.86, military property of the U.S. Government;

	b.  wrongfully stealing travel entitlements, of a value of about $989.12, military property of the U.S. Government;

	c.  making a claim against the United States finance office at Fort Sill, OK in the amount of about $1,100.02 for travel entitlements, which claim was false and fraudulent and then known by him to be the same;

	d.  willfully and wrongfully altering a public record (divorce decree) for the purpose of obtaining approval, allowance, and payment of a claim against the United States in the amount of $448.50, in the form of monthly BAQ; and

	e.  two specifications of signing an official record, which record was totally false and was then known by him to be the same.

4.  On 31 January 1997, he consulted with legal counsel and 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 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  

6.  On 7 February 1997, the separation authority approved his request for discharge and directed his reduction to private (PV1)/E-1 and issuance of an under other than honorable conditions discharge.  On 13 March 1997, he was discharged accordingly.

7.  On 28 August 1998, the applicant applied to the ADRB for an upgrade of his under other than honorable conditions discharge.  On 25 November 1998, after careful consideration and review of the applicant's military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  As a result, the ADRB denied his request for a discharge upgrade.

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

	a.  Chapter 10 of that regulation 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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

	b.  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.

	c.  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's request for a discharge upgrade has been carefully considered.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge 

from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His service prior to his misconduct was noted; however, based on the offenses he was accused of and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110017214



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ABCMR Record of Proceedings (cont)                                         AR20120002005



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