IN THE CASE OF:  	  

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140016645 


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 that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states:

	a.  He is requesting the upgrade of his discharge because of unforeseen events that occurred during that time frame, the changes he experienced, and because he would like to start using some of the benefits that are available to him.

	b.  At the time of his discharge in 1982, he had just experienced the loss of his twin sons due to sudden infant death syndrome and his older daughter had been diagnosed with meningitis.  He also had another premature daughter.  

	c.  After the loss of his children, his life changed drastically.  He was unable to think clearly and he lost the ability to focus, which made it hard for him to adjust to the changes.  He felt as if there was no reason to live.

	d.  He began getting in trouble and stealing as if he had no respect for the law.  He was charged with misdemeanor theft and he was demoted from pay grade E-3 to E-1.

	e.  As a member of the U.S. Army, he respected the law, but he made some irrational decisions.  He was a young man who had lost two of his children and his living children needed his undivided attention.  He and his wife divorced due to the stress of losing their children and the instability of his mind and his actions.

	f.  Since then, he has become an honorable citizen and an asset to society.  He served on the deacon board at his church.  He has a few letters of recommendation from some highly respected individuals who witnessed his transformation.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); a Lowndes County, GA, Sheriff's Office criminal record check; and two third-party letters of support.

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 25 March 1980.

3.  He accepted nonjudicial punishment (NJP) on 5 August 1981 for being derelict in the performance of his duties and for stealing a motor of a value of about $500.00, the property of the Fort Lewis, WA, Morale Support Beach.

4.  A Bar to Reenlistment Certificate shows he had been counseled in:

* November 1980, for shoplifting (civil charge)
* December 1980, for wrongful use of government property
* January 1981, for falsifying official documents
* July 1981, for failure to repair

5.  Court-martial charges were preferred against him on 15 January 1982 for:

* conspiring to commit larceny of various items of personal property of a total value in excess of $100.00, the separate property of four Soldiers
* taking possession of various electronic items, the personal property of other Soldiers
* unlawfully and burglariously breaking and entering the barracks room of another Soldier with the intent to commit larceny
* stealing several electronic items of a value in excess of $100.00, the separate personal property of other Soldiers

6.  After consultation with legal counsel on 19 April 1982, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged in his request for discharge that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

8.  The separation authority approved his request for discharge on 3 May 1982 and directed his reduction to the lowest enlisted grade and the issuance of an Under Other than Honorable Conditions Discharge Certificate.

9.  He was discharged accordingly on 1 June 1982.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct subject to trial by court martial, and he received an under other than honorable conditions character of service.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  There is no evidence indicating that the unfortunate family events he endured in 1982 were the proximate cause of his acts of misconduct.
12.  He provided a Lowndes Country, GA, Sheriff's Office criminal record check showing that, as of 19 May 2014, he does not have a criminal record in the State of Georgia.

13.  He provided two third-party statements of support that attest to his positive post-service conduct and accomplishments and recommend the upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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, an under other than honorable conditions 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 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 contends his discharge should be upgraded because his acts of misconduct were as a result of unfortunate family events he endured in 1982; however, his acts of misconduct commenced in 1980, as evidenced by the Bar to Reenlistment Certificate included in his military records.  Therefore, this contention appears to be without merit.

2.  He also indicated he is requesting the discharge upgrade in order to start using some of the benefits that are available to him; however, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for services and benefits provided to veterans with an honorable characterization of service.

3.  The available evidence shows he was charged with the commission of serious offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  The evidence confirms his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.  

5.  His record of indiscipline includes NJP for dereliction of his duties and stealing, negative counseling sessions for wrongful use of government property, shoplifting, and for falsifying official documents, and court-martial charges for unlawfully and burglariously breaking and entering the barracks room of another Soldier with the intent to commit larceny and for stealing several electronic items belonging to other Soldiers.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  The documents he provided in support of his request were carefully reviewed and considered; however, these documents do not show that his separation processing and/or the character of service he received were in error or unjust

7.  His positive post-service conduct and accomplishments were also noted and considered; however, in the absence of evidence showing his discharge processing and the character of service given were unjust, there is no 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)                                         AR20140016645



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ABCMR Record of Proceedings (cont)                                         AR20140016645



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