IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009434 


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 (UOTHC).

2.  The applicant states, in effect, that he was told that after 6 months, the characterization of his service would be upgraded after he repaid a Basic Housing Allowance (BAH) (formerly known as Basic Allowance for Quarters (BAQ)) debt owed to the government.  The characterization of his discharge caused him to lose his GI Bill, 2 months of leave pay, and be reduced to private (PV1/E-1).  He needs his discharge upgraded in order to apply for healthcare benefits through the Department of Veterans Affairs (VA).

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 5 August 1986, he enlisted in the Regular Army.  The highest rank/grade he achieved was specialist four (SPC/E-4).

3.  His record contains a Criminal Investigation Division report which shows that between 20 July 1988 and 31 May 1990, the applicant "KNOWINGLY DEFRAUDED THE U.S. GOVERNMENT OF $12,111.00 IN FUNDS WHEN HE INTENTIONALLY FAILED TO STOP HIS BASIC HOUSING ALLOWANCE FOR QUARTERS, VARIABLE HOUSING ALLOWANCE, AND SEPARATE RATIONS SINCE HIS DIVORCED [SIC] IN JUL 88."  This report also states that the applicant confessed to intentionally failing to stop his benefits.

4.  A DD Form 458 (Charge Sheet) dated 8 August 1990, shows he was charged with:

* stealing U.S. currency, in the form of unauthorized allowances, of a value of about $2,370.03, the property of the U.S. Army
* intent to deceive, made an official statement that he separated and not divorced from his spouse, a knowingly false statement

5.  On 12 August 1990, he consulted with counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniformed Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood he could request discharge for the good of the service because of charges having been preferred against him under the UCMJ, at least one of which authorized the imposition of a bad conduct or dishonorable discharge.  He was charged with larceny of unauthorized allowances and giving a false official statement.

7.  He elected not to submit statements in his own behalf.  He acknowledged:  

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood that as a result of his request he could be discharged under other than honorable conditions
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge
* he understood that there was no automatic upgrading or review of an other than honorable conditions discharge and that he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge

8.  On 6 August 1990, the separation authority approved his request for discharge, directed that he be discharged under other than honorable conditions, directed that he be reduced to private/E-1, and dismissed the charges against him.  On 30 August 1990, he was discharged as directed.  

9.  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 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 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 available evidence does not support the applicant's request for an upgrade of his under other than honorable conditions discharge.

2.  The Army does not have, nor has it ever had, a policy of upgrading discharges based solely on the passage of time or the repayment of debt.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with the larceny of unauthorized allowances and giving a false official statement, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ and for which he admitted guilt.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

4.  It is unfortunate that the applicant is unable to obtain healthcare through the VA; however, the evidence shows that he acknowledged that as the result of his discharge he could be ineligible for many or all benefits administered by the VA. 

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20130009434





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ABCMR Record of Proceedings (cont)                                         AR20130009434



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