BOARD DATE:  26 June 2014

		DOCKET NUMBER:  AR20130019761 


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 discharge to honorable.

2.  The applicant states he was unjustly discharged as the result of a crime he did not commit.  He purchased clothing from another Soldier who stated he was getting out of the Army and needed some extra money.   The applicant did not realize the clothing had been stolen from a store on base.  Although he was not guilty of the crime, he took the discharge in lieu of a jail sentence.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 28 September 1978.  He held military occupational specialty 94B (Food Service Specialist).  

3.  On 27 April 1979, charges were preferred against the applicant for:

	a.  Stealing government property in the form of a stereo console, microphone, headphones, and 48 record albums.

	b.  Stealing private property in the form of four three-piece suits, one sport jacket, eight shirts, nine pairs of men's slacks, three vests, and three sport coats.

	c.  Breaking into the NCO/EM Club to commit larceny.

4.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive an undesirable discharge, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement on his own behalf.

5.  The applicant's chain of command recommended approval of his voluntary request with the issuance of an under other than honorable condition discharge.  The separation authority approved the discharge request on 3 August 1979 and directed issuance of an Under Other than Honorable Conditions Discharge Certificate.

6.  On 22 August 1979, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He had completed 10 months and 25 days of creditable service.  His DD Form 214 shows his service was characterized as Under Conditions Other Than Honorable. 

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.



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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

	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 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 has provided nothing to substantiate his version of the facts.  There is no evidence to justify upgrading the discharge.

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general under honorable conditions.





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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130019761



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