IN THE CASE OF:	  

		BOARD DATE:  25 OCTOBER 2012

		DOCKET NUMBER:  AR20120008314 


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 honorable.

2.  The applicant states his discharge should be upgraded because he was set up by another Soldier who actually stole material from the government and placed the blame on him.

3.  The applicant provides no additional evidence.

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.  Having prior enlisted service, the applicant reenlisted in the Regular Army on 19 December 1978 and possessed military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, at the time of his discharge he held the rank/grade of private/E-1.

3.  The applicant's record contains a DA Form 2800 (Criminal Investigation Command (CID) Report of Investigation) rendered in December 1980.  This form and the associated documents show an investigation conducted by the CID determined the applicant had committed fraud against the U.S. Government by falsely claiming to be married with two dependent children in order to receive unauthorized pay allowances in the form of basic allowance for quarters and separate rations in the amount of $6,377.48 when, in fact, he had been divorced since 16 March 1978.

4.  The specific facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains U.S. Army Military Personnel Center-Korea Orders 180-2, dated 29 June 1981, which show his date of discharge as 2 July 1981.

5.  His record also contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged the good of the service in lieu of trial by court-martial on 2 July 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His service was characterized as under other than honorable conditions.

6.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge under other than honorable conditions to an honorable discharge.  In his request he stated he had served 10 years in the Army and felt he should have been punished instead of discharged.

7.  On 13 November 1985, the ADRB informed the applicant that his application for discharge review was being returned without action along with a copy of the new DD Form 293 (Application for Review or Discharge or Dismissal from the Armed Forces of the United States) which must be used for all future discharge appeal requests under the case of the Urban Law Institute of Antioch College, Incorporated, versus the Secretary of Defense and Department of Defense Directive 1332.28, dated August 1982.  She also advised the applicant that the ADRB would only respond to issues on the new form in accordance with the above cited civil action and directive.  He was provided a copy of the new form and a pre-addressed, postage-free envelope with guidance to return his new application within 30 days.  He was also advised that failure to reapply within 30 days would result in closure of his case without further action.  His record is void of any evidence showing he ever reapplied to the ADRB.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

9.  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.

10.  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 record should be corrected by upgrading his under other than honorable conditions discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  The applicant contends his discharge should be upgraded because he was set up by another Soldier who actually stole material from the government and placed the blame on him.  His record is void of any documentation showing he was charged with stealing "material" from the government.  Additionally, he did not provide any evidence that supports his contention.

3.  The evidence of record shows he was found guilty of committing fraud against the U.S. Government in order to receive unauthorized pay and/or allowances.   Although his record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

4.  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 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)                                         AR20120008314



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ABCMR Record of Proceedings (cont)                                         AR20120008314



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