IN THE CASE OF 

		BOARD DATE:    28 January 2014

		DOCKET NUMBER:  AR20130009871 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, he was found to be in possession of stolen property.  He purchased a broken record player from another Soldier for $5.00.  He was taking it off base for repair when he was stopped and charged with stealing it.  The record player was rightfully and honestly purchased.  He was told that requesting a "chapter 10 discharge" would let him out of the Army.  He was never told that opting for a discharge under the provisions of chapter 10 would make him ineligible for veterans' benefits later in life.

3.  The applicant provides no additional evidence.
 
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 July 1971.

3.  His records show he accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 21 December 1971, for signing a false official record
* 29 February 1972, for violating a lawful general regulation and being absent from his appointed place of duty

4.  The applicant's discharge processing documentation is not available for review.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged under conditions other than honorable on 26 July 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 1 year and 4 days of total active service.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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, 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 was normally furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7a states 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.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances surrounding his discharge are not available for review.  However, his DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

2.  There is no available evidence to substantiate the applicant's assertion that he had legally purchased the item he was accused of stealing or that he was not counseled that requesting a chapter 10 discharge would result in the loss of veterans' benefits.

3.  In the absence to evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations.

4.  The applicant has not shown any error, injustice, or inequity for the relief he requests.  Therefore, the applicant not entitled to 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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130009871



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