IN THE CASE OF:	  

		BOARD DATE:	  20 June 2012

		DOCKET NUMBER:  AR20120021366 


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 either a general or honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one incident in 4 years of service.  He was accused of vehicle theft that he did not commit and his military counsel kept advising him to admit guilt and put it behind him.  He was not guilty and felt that he was being railroaded.  He had a good record up to that point.  He had received his Expert Infantryman Badge and he was working in the Battalion Operations Section (S-3) as a noncommissioned officer in the rank/grade of sergeant (SGT)/E-5.  He also conducted training for the local Civil Air Patrol, teaching cadets map reading and compass skills for their search missions.  He believes he has led an exemplary life and has conducted himself in a good way.  He has worked 23 years in the airline industry without incident.  He has also worked as a motorcycle officer for 5 years and has been with the Coast Guard Auxiliary for many years.  He has not been convicted of any crimes nor has his license ever been suspended.

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.  The applicant enlisted in the Regular Army on 31 August 1972.  He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was SGT/E-5.

3.  The applicant's record contains:

	a.  Two DA Forms 2800 (Criminal Investigation Command (CID) Report of Investigation), a DA Form 2823 (Sworn Statement), and a CID Form 94 (Agent's Investigation Report) rendered during a CID investigation into allegations the applicant had stolen another Soldier's motorcycle.

	b.  a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 28 May 1976, which shows favorable personnel actions for the applicant were suspended as a result of a completed CID investigation; the applicant was pending trial by special court-martial for violation of Article 121 of the Uniform Code of Military Justice (UCMJ) in the form of larceny.

	c.  a DD Form 458 (Charge Sheet), dated 19 August 1976, which shows court-martial charges were preferred against the applicant for violation of Article 121, UCMJ, by stealing another Soldier's motorcycle.  His chain of command recommended trial by special court-martial.

	d.  a DA Form 268, dated 27 September 1976, which shows favorable personnel actions were suspended as a result of the applicant departing his unit in an absent without leave (AWOL) status on 27 September 1976.

	e.  a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows he was dropped from Army rolls on 26 October 1976 and then apprehended by the Burbank, CA Police Department on 3 December 1977.



	f.  a DD Form 458, dated 16 December 1977, which shows court-martial charges were preferred against the applicant for two specifications of violating Article 86, UCMJ by departing his unit in an AWOL status from 25 to 30 August 1976 and then again from 27 September 1976 to 3 December 1977.

4.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

5.  On 13 December 1977, following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant indicated he was submitting a statement in his own behalf, but the statement is not filed in his military personnel record.

6.  The applicant's company, battalion, and brigade commanders recommended approval of his request for discharge for the good of the service under other than honorable conditions.

7.  On 23 December 1977, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, that he be reduced to the lowest enlisted grade, and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 6 January 1978, the applicant was discharged accordingly.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

11.  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.

12.  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 request that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His post-discharge conduct and achievements are duly noted; however, they are not sufficiently mitigating to offset his misconduct while serving on active duty.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

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



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)                                         AR20120021366



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ABCMR Record of Proceedings (cont)                                         AR20120021366



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