IN THE CASE OF: 

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010774 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

2.  The applicant states he was not given the opportunity to end his enlistment.  He now wishes that he had been punished for what he did and had completed his enlistment.

3.  The applicant provides no additional documentary 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.  On 15 July 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).

3.  On 1 August 1988, the applicant was advanced to the rank of specialist, pay grade E-4, but was reduced on 2 February 1989.  There is no available record showing the circumstances of his disciplinary action.

4.  On 3 October 1989, the applicant had again been advanced to the rank of specialist.

5.  On 14 August 1990, charges were preferred under the Uniform Code of Military Justice for violation of Article 121 (wrongful appropriation and stealing).

	a.  Specification 1: wrongfully appropriate a Gold Key bank card valued at less than $100.00, the property of another Soldier.

	b.  Specification 2: steal United States currency, valued at $300.00, the property of another Soldier.

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

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 7 September 1990, the separation authority approved the applicant’s request for discharge and directed that he be issued a Certificate of Discharge Under Other Than Honorable Conditions.  On 20 September 1990, the applicant was discharged accordingly.  He had completed 3 years, 2 months, and 6 days of creditable active duty service during this period of active duty.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  Under the UCMJ, the maximum punishment allowed for violation of Article 121, for stealing property other than government property, valued at less than $500.00 is a punitive discharge and confinement for 6 months.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC 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 (emphasis added), 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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant has not provided any convincing argument or documentary evidence to sufficiently support his request.

3.  Based on his misconduct, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to any upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20130010774





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ABCMR Record of Proceedings (cont)                                         AR20130010774



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