IN THE CASE OF:	  

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130005764 


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 under other than honorable conditions discharge to an honorable or a general discharge.

2.  The applicant states he was discharged in April 1988, while assigned to Zweibrucken, Germany.  He was charged with making improper statements to an employee at the commissary and filing a false claim for lost items.  Both allegations were false.  The claims made by the employee were not supported by a witness and no other activities of that nature had been noted.  Additionally, the statements were not witnessed.

	a.  His baggage arrived in Zweibrucken in August 1987.  When the moving company delivered his items to his apartment he noticed that a few of the boxes had been opened.  He filed a claim for the missing items, which included a television, VCR, and turntable.  The following month he was brought up on charges for filing a false statement.  His quarters were searched on two separate occasions and none of the missing items were found.  

	b.  The case made against him was not supported by any evidence.  However, he was discharged without the option of a Discharge Review Board and was told he would be discharged within 1 day of notification.

	c.  His commander, a civilian, inappropriately sought his discharge based on offenses he did not commit.  He believes that his commander failed to follow the rules regarding administrative discharges and Discharge Review Boards.  He was never given the opportunity to address his accusers or the alleged offense.  He was not offered nonjudicial punishment (NJP) or a court-martial and his discharge was conducted in lieu of due process.  He also believes that his commander was compromised due to an inappropriate relationship with his accuser.

3.  The applicant provides a self-authored statement, dated 19 March 2013.

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.  After having had previous enlisted service, the applicant enlisted in the Regular Army on 9 December 1976 and served through a series of extensions and reenlistments.  He served in a variety of stateside or overseas assignments. The highest rank/grade he attained while serving on active duty was staff sergeant (SSG)/E-6.

3.  His record contains a DA Form 2496 (Disposition Form), dated 31 March 1987, which shows he was assigned to the Zweibrucken commissary as the store manager.  His rater and endorser were both civilian employees and his reviewer was a colonel (COL) and his commander.

4.  His record is void of the complete facts and circumstances surrounding his discharge; however, it does contain his request for discharge for the good of the service, dated 17 March 1988, wherein he stated/indicated/acknowledged:

	a.  He voluntarily requested discharge for the good of the service in accordance with (IAW) Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service - In Lieu of Court-Martial).  He understood that he may request discharge for the good of the service because of the following charges which had been preferred against him IAW the Uniform Code of Military Justice (UCMJ), each of which authorizes the imposition of a bad conduct or dishonorable discharge.  These charges included:
		(1)  Charge I:  one specification of signing a false official statement

		(2)  Charge II:  one specification of presenting a false claim

		(3) Charge III:  two specifications of indecent language and one specification of making a false official statement

	b.  He stated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and had been advised of the implications that were attached to his request.  He acknowledged that by submitting this request for discharge that he understood the elements of the offenses charged and was guilty of some or all of the charges against him or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstance did he desire further rehabilitation because he had no desire to perform further military service.

	c.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation.  He consulted with counsel and was fully advised of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also acknowledged that counsel advised him of the possible defenses which appeared to be available at the time, the maximum permissible punishment if found guilty, and of the legal significance of his discharge.  He indicated that although he had been furnished with legal advice, his request for discharge was his own decision.

	d.  He acknowledged he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable.  He had been advised and understood the possible effects of an under other than honorable conditions discharge, that as a result of the issuance of an under other than honorable conditions discharge he would be deprived of many or all Army benefits, he could be ineligible for many 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 law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He further understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished to have his discharge reviewed.  He acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded.

	e.  He acknowledged he understood that once his request for discharge was submitted it could be withdrawn only with the consent of the commander exercising court-martial authority, or without that commander's consent in the event a trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court.  He further understood that if he were to depart absent without leave his request would be processed and he could be discharged even though he was absent.

	f.  He acknowledged that he had been advised he could submit any statements he desired in his own behalf to accompany his request for discharge. However, there were no statements attached to his request for discharge.  

5.  On 17 March 1988, the court-martial convening authority, a brigadier general, approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.

6.  On 7 April 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  He completed 14 years, 1 month, and 19 days of creditable active service.

7.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service – in lieu of trial by court-martial.  By requesting this discharge the applicant admitted to being guilty of some or all of the charges against him.  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 the offenses for which he was charged.

2.  The applicant contends that he was improperly discharged without the option of a Discharge Review Board, he was not offered NJP or a court-martial, and his discharge was conducted in lieu of due process.  However, his own request for discharge IAW with Army Regulation 635-200, chapter 10 shows he was charged with one specification of signing a false official statement, one specification of presenting a false claim, two specifications of indecent language, and one specification of making a false official statement.  These offenses were punishable under the UCMJ with a punitive discharge.  He could have accepted trial by court-martial if he believed he was innocent. 

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a 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 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)                                         AR20130005764





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ABCMR Record of Proceedings (cont)                                         AR20130005764



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