IN THE CASE OF:  	  

		BOARD DATE:  17 March 2015	  

		DOCKET NUMBER:  AR20140011127 


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, upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  He states that private (PVT) R_____ and PVT H______ did not tell the truth of what happened.  PVT R______ set his bed on fire, but he was blamed for it.  

3.  He provides:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 200 (Report of Survey)
* Statement of Charges for Government Property Lost, Damaged or Destroyed 
* Four DA Forms 2823 (Sworn Statement)

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 10 September 1976.

3.  On 27 December 1977, he was convicted, contrary to his pleas, by a summary court-martial of unlawfully grabbing a sergeant on the arms with both hands, operating a vehicle in a reckless manner by driving at a speed in excess of normal conditions, and being derelict in the performance of his duties in that he negligently failed to perform "after operations maintenance" as it was his duty to do.  He was sentenced to a forfeiture of $221.00 pay for 1 month and restriction to the company area, mess hall, post-exchange, and his place of worship on Fort Hood for 60 days.

4.  On 24 January 1978, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for willfully and wrongfully destroying by slashing with a knife, four tires, of a value of about $178.00, the property of a corporal.  

5.  On 6 September 1978, charges were preferred against the applicant for being drunk and disorderly; willfully destroying one dresser drawer by removing it forcibly from a wall locker and throwing it to the floor, of a value of about $70.00, military property of the United States; disobeying a lawful order from his superior noncommissioned officer; and failing to go at the time prescribed to his appointed place of duty.

6.  On 7 September 1978, he consulted with legal counsel and he 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.  In doing so, he admitted guilt to the offenses charged.  He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if a UOTHC discharge was issued to him.  He did not submit statements in his own behalf.  

7.  On 18 September 1978, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge and reduction to the lowest enlisted grade.

8.  He was discharged on 25 October 1978 with a UOTHC discharge after completing a total of 2 years, 1 month, and 16 days of creditable active service.  

9.  He provided the following documents:

	a.  A DD Form 200, dated 1 March 1978, which indicates that a First Sergeant from Combat Support Company, 2nd Battalion, 5th Cavalry, 1st Cavalry Division reported that a mattress in Room 333, Building 37006 was burned and the applicant had signed for the mattress.  The document also indicates that a DD Form 362 (Statement of Charges) was prepared, but the applicant refused to sign it.  The survey officer reported that after the applicant returned to his room his mattress caught fire and was damaged.  The Charge of Quarters (CQ) Runner, PVT T______ and a specialist four put out the fire.  The CQ Runner sent for PVT R______ who was in Room 333, Building 37006 when the fire occurred to his own room.  

	b.  A Statement of Charges for Government Property Lost, Damaged or Destroyed, dated 13 February 1978, which indicates the cost of the damaged mattress as $32.40.  The applicant refused to sign document.  

	c.  Four DA Forms 2823, dated 21, 22, and 23 March 1978, which provide statements from the applicant and three other Soldiers describing the events that occurred when the mattress was burned and was destroyed.  

10.  His service record does not indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 UOTHC discharge is normally considered appropriate.

	a.  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.

	b.  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 contention that another Soldier set his bed on fire, but he was blamed for it is acknowledged.  However, charges were preferred against him for being drunk and disorderly, willfully destroying a dresser drawer by removing it forcibly from a wall locker and throwing it to the floor, disobeying a lawful order from his superior noncommissioned officer, and failing to go at the time prescribed to his appointed place of duty; charges for which he could have received a punitive discharge.

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The evidence of record shows he received one Article 15 and one conviction by a summary court-martial.  

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20140011127





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ABCMR Record of Proceedings (cont)                                         AR20140011127



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