BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001335


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, in effect, correction of his military records by upgrading his undesirable discharge to honorable.

2.  The applicant states he was falsely accused of stealing meat from the officer’s club.  He contends a witness saw him picking up a fellow Soldier who was the food inspector.  That Soldier said he was working late taking inventory.  The applicant said he often drove this Soldier home from the officer’s club.  However, this time, he wanted to go back to the squad building.  He had two duffle bags full of what he described as “expired meat” which was still edible.  When he was subsequently accused of stealing this meat he said the applicant had helped him.  The applicant argues that he was offered a choice of 90 days in confinement, or an administrative discharge.  Because he was about 30 days from the expiration of his term of service (ETS), he elected to request discharge.  This has bothered him every day since; but, his career as a driver for the Chicago Bears and the Chicago House of Blues has helped him not to think about it.  He feels so wrongly convicted and wants his discharge made honorable.

3.  The applicant provides no additional documentation.

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 28 September 1973, the applicant enlisted in the Regular Army.  He was trained as a medical specialist.

3.  Evidence of record indicates that the applicant accepted nonjudicial punishment (NJP) for the following violations:

	a.  on or about 21 August 1975 for failing to obey a direct order from his commanding officer to have his hair cut; and

	b.  on or about 14 September 1975 for knowingly and intentionally possessing marijuana.

4.  A letter of reprimand, dated 3 March 1976, was given to the applicant in response to his receiving a civil conviction on 23 January 1976 for strong arm robbery.

5.  On 5 August 1976, the following charges were preferred under the Uniform Code of Military Justice (UCMJ):

	a.  Charge I: Violation of Article 121, UCMJ, for stealing a variety of meats from the officer’s club on 11 July 1976, valued at about $495.21;

	b.  Charge II: Violation of Article 130, UCMJ, for unlawful entry into the officer’s club on 11 July 1976; and

	c.  Charge III: violation of Article 134, UCMJ, for unlawfully receiving a Nikon camera valued at about $200.00 and known by the applicant to have been stolen from the U.S. Government.

6.  On or about 2 November 1976, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

7.  On 2 November 1976, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In his request for discharge, the applicant indicated that 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 9 November 1976, the Staff Judge Advocate (SJA) summarized the applicant’s personal data, record of misconduct and criminal history, and recommended that the commander approve the applicant’s request to be discharged for the good of the service.  The SJA further recommended he receive a DD Form 258A (Undesirable Discharge Certificate).

9.  On 10 November 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A.  On 
17 November 1976, the applicant was discharged accordingly.  He had completed 3 years, 1 month, and 20 days of creditable active duty service.

10.  On 9 June 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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

   a.  Chapter 10 of that regulation 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 trial by court-martial.  An undesirable discharge was 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 contends, in effect, that his military records should be corrected by upgrading his undesirable discharge to honorable because he did not do the crime.

2.  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.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lengthy period of lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  Other than the applicant's statement that he did not do the crime, he has not provided any type of corroborating evidence.

5.  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)                                         AR20130021516



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ABCMR Record of Proceedings (cont)                                         AR20140001335



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