IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140002119 


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 under other than honorable conditions discharge.

2.  The applicant states:

   a.  He had two cars and only needed one.  Instead of trying to sell one, he let his roommate talk him into letting him get rid of one of the cars by burning it and saying it was stolen.  He was scared of his roommate because he did a lot of drugs; however, the applicant dropped the insurance claim because he did not want to defraud the insurance company. 

   b.  He already had over a year in the Army and he wanted to stay in, but his lawyer said it would be easier to get out and he would not have to go to court.  He feels he was given improper counseling and should have been able to stay in the Army.

   c.  He loves his country and would do anything for it.  He regrets what he did and he is upset after seeing what other service members (a Navy commander and Air Force officers) got away with and still received honorable discharges.    He knows he made mistakes, but compared to what the officers did he feels he was not treated equally or fairly.

3.  The applicant provides a self-authored statement, an article, and 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), 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 19 September 1974.

3.  On 19 March 1976, court-martial charges were preferred against the applicant for violating Article 134, Uniform Code of Military Justice (UCMJ), for willfully and maliciously burning an automobile (the property of the applicant) with intent to defraud the insurer and for violation of Article 107, UCMJ, for making a false official statement.

4.  On 5 May 1976, the convening authority referred the charges for trial by a general court-martial. 

5.  On 20 May 1976, 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 UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

6.  In his request for discharge, the applicant indicated he understood that by requesting a 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 laws.  The applicant elected to submit a statement in his own behalf.  The applicant stated due to the charges pending against him, he had no future in the Army and it would save the government money and benefit himself and the Army if he was discharged under chapter 10.

7.  Contrary to his chain of command's recommendations, on 2 July 1976, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 15 July 1976, the applicant was accordingly discharged.

8.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service.  This form further confirms he completed 1 year,  9 months, and 27 days of total active service during this period with no time lost.

9.  On 8 August 1984, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  The applicant provides a copy of an article detailing the events of a Navy officer who faked his own death to end an affair with a woman and received an honorable discharge.

11.  Army Regulation 635-200 sets forth 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, the 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 Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service at the time the applicant was discharged.

	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 applicant's request to upgrade his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence indicates he willfully and maliciously burned his automobile with intent to defraud the insurer and subsequently made a false official statement.  He later requested an administrative discharge in lieu of trial by court-martial.  Therefore, based on his record of indiscipline, the applicant's service does not merit an upgrade to his discharge to either 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)                                         AR20140002119





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ABCMR Record of Proceedings (cont)                                         AR20140002119



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