IN THE CASE OF:	   

		BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20130015813 


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 upgrade of his under other than honorable conditions discharge to at least a general, under honorable conditions discharge.

2.  The applicant states:

* he was wrongfully incarcerated while serving in the U.S. Army
* he was cleared, released and compensated for his time served when it was realized he had been wrongfully incarcerated
* he never signed his discharge papers and they state he was unavailable, but he was in jail
* the only papers he signed upon his release were for back pay
* he never saw his DD Form 214 (Certificate of Release or Discharge from Active Duty) until recently while applying for assistance with the Department of Veteran Affairs (VA)

3.  The applicant provides his DD Form 214.

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 23 April 1980.

3.  The applicant's record contains a DD Form 458 (Charge Sheet), dated 
28 January 1981, that shows a court-martial charge was preferred against him  for one specification of stealing personal property and currency from a Soldier on 21 December 1980.

4.  General Court-Martial (GCM) Order Number 31, Headquarters, 9th Infantry Division, dated 21 May 1981, shows that on 27 March 1981 the applicant was convicted by a GCM by using force and violence and putting a Soldier in fear, steal from his wallet containing personal papers and $25.00 on 21 December 1980.  He was sentenced to be reduced to private (E-1), confined at hard labor for 1 year, forfeiture of all pay and allowances, and to be discharged with a dishonorable discharge. 

5.  GCM Order Number 299, Headquarters, Combined Arms Center and Fort Leavenworth, dated 14 June 1982, shows that on 22 June 1982 the unexecuted portion of the sentence to confinement was remitted.

6.  On 17 September 1982, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated 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 were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

7.  The applicant's unit and intermediate commanders subsequently recommended approval with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 29 September 1982, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be issued an under other than honorable conditions discharge.

9.  General Court-Martial Order Number 377, Headquarters, U.S. Army Combined Center and Fort Leavenworth, dated 29 September 1982, shows that on 18 June 1982, the finding of guilty and the applicant’s sentence was set aside and a rehearing was authorized.  The applicant’s request for discharge for the good of the service under the provisions of chapter 10, in accordance with Army Regulation 635-200, having been approved on 29 September 1982, a rehearing was no longer practicable.  All rights, privileges, and property affected by the finding and the sentence so set aside were restored. 

10.  On 12 October 1982, the applicant was discharged accordingly.  He completed 1 year and 20 days of creditable active service with 515 days of time lost.  

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.  Evidence of record shows the applicant was initially convicted by a general court-martial which was set aside and all his rights, privileges, and property were restored.  However, he was not “cleared.”  A rehearing was ordered.  

2.  However, additional evidence shows the applicant had already voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  By requesting this discharge, he admitted he was guilty of the charge.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

3.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  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)                                         AR20130015813



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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