BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001585 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001585 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 5 September 2017 DOCKET NUMBER: AR20160001585 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 character of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states he purchased stereo speakers from an enlisted Soldier’s spouse and he did not know the speakers were stolen, at the time. He was eventually charged with receiving stolen property. He was an outstanding Soldier with no blemishes on his record up until this incident. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 July 1979. He completed training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator). He was promoted to the rank/pay grade of specialist four (SP4)/E-4 on 1 March 1981. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 29 August 1980, for willfully disobeying a lawful order from a non-commissioned officer. 4. On 8 December 1986, court-martial charges were preferred against him for one specification each of: * stealing two loud speakers, of a value of about $345, the property of the Army and Air Force Exchange Service (AAFES) * stealing two loud speakers, of a value of about $750, the property of AAFES 5. On 27 January 1987, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a punitive discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. a. In his request for discharge, he stated he was making the request of his own free will and he had not been subjected to coercion whatsoever by any person. By submitting the request for discharge, he acknowledged that he was guilty of a charge(s) against him or of a lesser included offense which authorized the imposition of a bad conduct discharge or dishonorable discharge. He stated under no circumstances did he desire to perform further military service. b. He further acknowledged he understood if the discharge request was approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. He 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 encounter substantial prejudice in civilian life. He elected to submit statements on his own behalf. 6. The applicant’s record shows the applicant's father, his wife, four sergeants, three staff sergeants, and a lieutenant colonel wrote complementary character letters, lauding the applicant’s military duty performance and character. The majority of these letters indicate that the applicant unknowingly purchased stolen equipment from another individual. Each of these letters indicate that the applicant was a very honest person, and one of the letters indicates that the charges were preferred because he came forward once he realized he purchased stolen merchandise. 7. The applicant’s commander stated that with the exception of the incident mentioned the applicant had a good military record. The applicant’s performance of duty under his command over the past 8 months had been satisfactory. Furthermore, he regretted the applicant was leaving the Army and recommended leniency with respect to the nature of his discharge. 8. On 14 March 1987, the separation authority approved his request for discharge and directed that he be reduced to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. Accordingly, on 24 March 1987, he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service - in lieu of trial by court-martial. The DD Form 214 he was issued shows he completed 7 years, 8 months, and 15 days of net active service this period. 10. On 1 January 1988, the Army Discharge Review Board disapproved his request for an upgrade of his discharge. REFERENCES: AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 then in effect provided that a member who had 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 was 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: 1. The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Requests for discharge under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 2. The applicant's disciplinary history contains one instance of nonjudicial punishment for a minor infraction, within the first year of his service. After he received this nonjudicial punishment, his record remained clean until court-martial charges were preferred against him for stealing more than $1,000 worth of merchandise from AAFES. However, the letters of support provided by his fellow Soldiers at the time indicate that the applicant was an honest person, who unknowingly purchased stolen equipment. 3. Nevertheless, he indicated understanding that by submitting the request for discharge, he acknowledged that he was guilty of a charge(s) against him or of a lesser included offense which authorized the imposition of a bad conduct discharge or dishonorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001585 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001585 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2