IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140013348 


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 discharge to honorable.

2.  The applicant states his discharge was not the direct fault of his neglect and was imposed without proper investigation of his case.  His children and his grandchildren need to know that he served with pride and honor.

3.  The applicant provides his discharge packet, DD Form 214 (Certificate of Release or Discharge from Active Duty), and a personal letter.

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 1 February 1982, he enlisted in the Regular Army and served as a cavalry scout and infantryman during his period of service.  His assignments included service in Korea and later, Fort Hood, TX.  His final assignment was with Company B, 1st Battalion, 7th Infantry, Germany.

3.  The available record is void of the complete facts and circumstances regarding his discharge.  The applicant provided a copy of his discharge and this information is sufficient for review and to offer a recommendation.

4.  On an unknown date, he was charged with violating Article 131 (Larceny and wrongful appropriation), Uniform Code of Military Justice (UCMJ).

5.  On 26 January 1990, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he could request discharge for the good of the service because the charge of larceny had been preferred against him under the UCMJ which could result in a bad conduct or dishonorable discharge
* he understood the elements of the offenses charged and had reviewed the evidence in his case which satisfied those elements
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he had been afforded the opportunity to consult with appointed counsel 
* he understood the facts that had to be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty and the possible defenses available at the time
* he understood he could be issued a under other than honorable conditions (UOTHC) discharge 
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  He submitted a statement in support of his request for discharge wherein he stated that a Chapter 10 discharge would permit him to obtain some kind of employment in civilian life to support his family.

6.  On 13 February 1990, the separation authority approved the applicant's request and directed he be discharged UOTHC and reduced to the lowest enlisted rank.  The separation authority barred the applicant from entry to all U.S. government controlled property under the jurisdiction of the U.S. Army, Europe for stealing Basic Allowance of Quarters, Family Separation Pay and Variable Housing Allowance, of a value of about $11,578.00.  

7.  On 12 March 1990, he was discharged in accordance with the separation authority's decision.  He completed 8 years, 1 month, and 12 days of net active service this period.

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

9.  He provides a personal statement to the Board.  He states that it has been 24 years since his discharge from the Army, and since his discharge he has always maintained a legal and lawful standard of living for himself and his family.  The offense he was charged with was not his fault and he was not properly represented.  He was told that he should take the chapter 10 rather than fight a court-martial.  At the time he did what was best for his family.  Further, he was told that after a certain amount of time he could request an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	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 available evidence does not support the applicant's request for an upgrade of his discharge to honorable.

2.  The Army does not have, nor has it ever had, a policy of upgrading discharges based solely on the passage of time.  His post-service conduct appears to be commendable; however, post-service conduct is not normally a reason for upgrading a properly-issued discharge.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows the applicant was charged with the offense of larceny for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  The available evidence shows he fully understood the implications of his decision.  His rights were fully protected throughout the discharge process.

4.  Considering the serious charges against him, the separation authority was justified in directing that he receive a UOTHC discharge.  In the absence of evidence showing an error or injustice in the separation authority's decision, there is an insufficient basis upon which to upgrade the applicant's discharge to an honorable discharge 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)                                         AR20140013348



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ABCMR Record of Proceedings (cont)                                         AR20140013348



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