BOARD DATE:	15 January 2015  

		DOCKET NUMBER:  AR20140010345 


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 (UOTHC) discharge.

2.  The applicant states:

   a.  He was an excellent Soldier with no bad marks.  He was aware of the incident that occurred, but he didn't take anything.  The person who took the stereo was caught.  The Army's investigation had to show he feared for his life which is the reason why he didn't say anything about the incident.  He didn't actually think the person would go through with it until it happened.  This person threatened him with a gun and made him promise not to say anything about the incident.  Psychologically he wasn't mature enough to handle that pressure.

   b.  He has been quiet for 29 years and has suffered in shame long enough for being quiet.  They caught the persons who took and pawned the stereo or parts of it.  He didn’t take anything and he did not have a reason to take it.  He made a terrible mistake and should have handled it better.  He is sorry he let everyone in his unit down.  He learned the person who took the stereo was able to continue serving and received a good discharge after serving.  He feels this should be one of the reasons his discharge should be upgraded.  He was punished for his mistake and he carries it with him every day.  He behaved well before this happened.  He received awards, commendations, and certificates, etc.  He is still proud to say that he served in the Armed Forces.


3.  The applicant provides copies of the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) (2 copies)
* letter from the Department of Veterans Affairs (VA)
* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 3 March 1982.  He was awarded military occupational specialty 19K (M1 Abrams Armor Crewman).  He was promoted to pay grade E-4 on 1 September 1983.

3.  On 14 November 1984, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully and unlawfully making under lawful oath a false statement and conspiring with another Soldier to steal a stereo system, value of about $3,295.00, the property of another Soldier.  

4.  On 21 November 1984, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-2c, for commission of a serious offense, for larceny, lying in a sworn statement, and conspiracy.  The company commander stated that a U.S. Army Criminal Investigation Command (CID) investigation revealed that the applicant was involved in a barracks larceny which occurred in late 1983.  He advised the applicant of his rights.

5.  On 21 November 1984, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general or a UOTHC discharge and the results of the receipt of such discharges.  He waived his rights and elected not to submit a statement in his own behalf.    

6.  On 24 December 1984 and 28 January 1985, the applicant's chain of command recommended approval of the applicant's discharge.

7.  On 12 March 1985, the separation authority approved the applicant’s discharge and directed the issuance of a UOTHC discharge.

8.  He was discharged accordingly in pay grade E-1 on 15 March 1985.  He was credited with completing 3 years and 13 days of active service.  

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

10.  He provided a copy of a letter, dated 27 June 2013, wherein the VA advised him that his military service for the period 3 March 1982 through 15 March 1985 wasn't honorable for VA purposes.  He and his dependents weren't eligible for any VA benefits for that period of military service.  He was entitled to health care benefits for any disability determined to be service connected.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  The regulation stated in:

   a.  Paragraph 14-12c - Soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
   
   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 for larceny, lying in a sworn statement, and conspiracy after an CID investigation revealed he was involved in a barracks larceny which occurred in late 1983.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c.  He acknowledged the proposed separation action and elected not to submit a statement in his own behalf.  The separated authority approved his discharge and directed the issuance of a UOTHC discharge.  He was discharged accordingly on 15 March 1985.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable 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)                                         AR20140010345





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ABCMR Record of Proceedings (cont)                                         AR20140010345



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