BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003941 


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 reconsideration of his prior application for an upgrade of the characterization of his discharge.

2.  The applicant states he was coerced by "SID" [Criminal Investigation Division (CID)] to take the discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Separations – Enlisted Separations), chapter 10.  He states the Army Board for Correction of Military Records (ABCMR) should obtain a copy of a Federal Bureau of Investigation (FBI) file and a South Carolina criminal records report.  He doesn't think stealing $20.00 is worth 30 years.  He notes that paragraph 10a (Consideration of Evidence of the prior decisional document) states an honorable or general discharge is authorized and now demands an upgrade.

3.  The applicant provides a self-authored letter as new evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140000475, on 28 August 2014.

2.  The applicant's current application was submitted within 1 year of his earlier denial and contains a new argument not addressed by the prior Board’s review.

3.  The applicant served on active duty from 16 August 1983 through 27 March 1984.  He did not complete his advanced individual training or receive a military occupational specialty (MOS).

4.  On 17 January 1984, the applicant attempted to pay for $19.00 worth of gas with the check of another Soldier.  Because he did not have his military identification card, the gas station attendant notified the military police (MP).  The applicant was told to remain at the station until an MP arrived.  The applicant got in his car and drove off.  The attendant was able to get the vehicle license plate number and referred it to the MP's.  The applicant was apprehended by the MP and advised of his legal rights.  He admitted to stealing the check from his roommate but denied having signed it.  The case was turned over to CID for investigation of fraud and larceny. 

5.  The CID completed its investigation including analysis of the handwriting on the check with samples from the Soldier who was the official holder of the checking account, the applicant, and two other Soldiers.  The CID found there was sufficient evidence to warrant preferring court-martial charges against the applicant.

6.  On 6 March 1984, the applicant was charged with stealing $19.00 worth of gasoline from the exchange system, stealing a check from a fellow Soldier and utilizing that stolen check with intent to defraud, and falsely and unlawfully writing said check for gas.  

7.  On 9 March 1984, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of AR 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he if he were found guilty of the charges, or lesser included charges, he could be discharged with a punitive discharge and, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He waived his administrative rights and elected not to provide a statement in his own behalf.

8.  On 13 March 1984, the separation authority (a major general exercising general court-martial authority) approved his request to be discharged for the good of the service.                   

9.  On 27 March 1984, he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service, and his service was characterized as UOTHC.  He completed 7 months and 12 days creditable active military service.

10.  On 23 December 1986, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

11.  On 28 August 2014, the ABCMR denied the applicant's request for an upgrade of his characterization of service.  It was stated that based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  A UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.  

13.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  It states that:

	a.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  
	b.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	c.  A reconsideration of a Board decision will be made when additional evidence or other matter including, but not limited to factual allegations or arguments, that were not previously available to the Board has been submitted.  

DISCUSSION AND CONCLUSIONS:

1.  Concerning his request for the ABCMR to contact the FBI and South Carolina to obtain criminal records or investigative reports, the ABCMR is not an investigative body.  Therefore, the ABCMR did not contact any Federal or state agency to request records to support his request for reconsideration. 

2.  The applicant has not submitted and the record does not contain any evidence that CID in any way coerced the applicant into taking a chapter 10 discharge in lieu of going to court-martial for fraud and larceny.  CID was not involved in the determination of whether or not the applicant was to be discharged once its investigation was complete.  The decision to prefer charges is the responsibility of the applicant’s chain of command.

3.  The applicant’s chain of command preferred charges against him.  The decision to request the chapter 10 discharge was the applicant's.  He was advised of and acknowledged the consequences of the UOTHC as well as the maximum punishment he could receive if found guilty of the charges by a court-martial to include a bad conduct discharge or dishonorable discharge.  

4.  In his new argument, the applicant points to the statement in his original record of proceedings that states the decision authority could authorize a different characterization of service.  While a true statement, in his case the final decision by the general court-martial convening authority determined his theft of another Soldier’s property warranted an UOTHC discharge.  

5.  The applicant has not provided and the record does not contain any evidence of any activities that could be considered so exceptionally meritorious as to outweigh the offenses that resulted in his discharge especially in light of the fact that his military record is devoid of significant service and shows he did not even complete his MOS training.  While he argues it has been 30 years since his discharge, the passage of time isn’t normally a basis for changing an appropriately executed 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 to amend the decision of the ABCMR set forth in Docket Number AR20140000475, dated 28 August 2014.



      _______ _ 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)                                         AR20150003941



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003941



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1