IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140016073 


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 his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant, in effect, states he would like his discharge upgraded.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two Veterans Administration Certificates of Eligibility, dated 5 December 1984 and 14 November 1988.

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 23 November 1977 and he held military occupational specialty 15D (Lance Missile Crewmember).  He attained the rank/grade of sergeant (SGT)/E-5 on 7 November 1982.

3.  On 29 May 1984, he was assigned to the 1st Battalion, 13th Field Artillery, 24th Infantry Division (ID), Fort Stewart, GA.

4.  On 21 November 1984, the U.S. Army Criminal Investigation Command, commonly referred to as CID, initiated an investigation into allegations that the applicant committed larceny of government property, made a false official statement, and obtained a fraudulent separation from the Army by forging his commander's signature.

	a.  In a sworn statement to CID, dated 21 November 1984, the applicant stated his expiration of term of service (ETS) was 21 November 1984 but when he took his clearance papers to the commander for his signature the commander refused to sign them.  The commander said he would not sign the form until he (the applicant) cleared up his personal problem which was to ship his furniture to his spouse in Germany.  He had already told the command sergeant major (CSM) that he did not have the money to ship the furniture so he forged his commander's signature in order to ETS that day.  He obtained about $2100 from finance for the 60 days of leave he sold back to the Army.  He also stated he knew what he did was wrong.

	b.  CID's investigation found that he had forged his commander's signature on clearance papers and, as a result, he was able to separate from the Army and obtain his final payment from finance totaling over $2,000 which he was not entitled to without a legal separation.

5.  On 23 November 1984, court-martial charges were preferred against him for one specification each of:

* falsely, with the intent to deceive, signing the commander's signature on a document and fraudulently using the forged document to obtain separation from the Army
* presenting a forged document at a military installation to procure himself to be separated from the Army
* stealing $2001.68, the property of the United States
* failing to obey a lawful order given by his CSM

6.  He subsequently consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  His legal counsel asked the command to delay the court-martial proceedings.  On 13 February 1985, following consultation with legal counsel, the applicant 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.

7.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

8.  In a statement he submitted on his own behalf with his request for a discharge, he stated he knew he made a mistake but it was not done out of meanness.  He only did it so he could get clearing money to take care of getting his spouse the personal items that belonged to her.  He had been in the Army for 7 years and did not want to be judged on the one mistake he made.  A bad discharge would cause him to be punished for life and make it harder to get a job.

9.  On 19 and 20 February 1985, his immediate and intermediate commanders recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 25 February 1985, his senior commander recommended approval of his request with the issuance of a General Discharge Certificate. 

10.  On 28 February 1985, the separation authority approved his request for discharge and directed he be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.  On 14 March 1985, he was discharged accordingly.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  He completed 7 years, 3 months, and 19 days of net active service with 2 days of lost time.

12.  On 7 September 1993, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

13.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, 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.

15.  Army Regulation 635-200, 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 evidence of record confirms the applicant, a SGT at the time with 7 years of service, 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140016073





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ABCMR Record of Proceedings (cont)                                         AR20140016073



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