IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080005577 


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, in effect, that his discharge of 23 May 1979 be upgraded from under other than honorable conditions to general.

2.  The applicant states, in effect, that he believes his discharge on his second enlistment should be upgraded because he served honorably his first enlistment. He also states that because he did not have a break in service, he is ineligible for benefits.

3.  In support of his application, the applicant provides copies of his 18 December 1974 and 23 May 1979 DD Form 214s (Report of Separation 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’s military records show he enlisted in the Regular Army in pay grade E-1 on 30 November 1972 for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 31B, Radio Mechanic.  He was advanced to pay grade E-4 on 1 January 1974.

3.  The applicant was honorably discharged for immediate reenlistment on 18 December 1974 and was issued a DD Form 214.  He reenlisted on 19 December 1974 for 5 years.  He served in Korea from 24 February 1978 to 22 May 1979.

4.  On 17 December 1976, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to obey a lawful general regulation by not registering his privately owned vehicle on post on 4 December 1976, and failing to go to his appointed place of duty on 11 December 1976.  His punishment included reduction to pay grade E-3 (suspended for four months) and 14 days extra duty.  He did not appeal the punishment.

5.  On 23 February 1979, a Charge Sheet (DD Form 458) was prepared by the Commander, 117th Aviation Company (Assault Helicopter), APO San Francisco. The applicant was charged with two specifications of violating a lawful general regulation on 10 November and 26 November 1978 by wrongfully using his customs-free privileges regarding the importation of goods into the Republic of Korea for the purpose of realizing personal gain or profit; and two specifications of violating a lawful general regulation on 10 November and 26 November 1978 by wrongfully and knowingly assisting a Korean National, a person not authorized to purchase duty free merchandise, to obtain duty free merchandise.

6.  On 9 March 1979, the charges were referred for trial to the special court-martial convening authority.

7.  All the documents containing the facts and circumstances surrounding the applicant's request for discharge for the good of the service in lieu of trial by court-martial are not present in the available records; however, it appears that on 27 April 1979, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, Chapter 10.

8.  On 3 May 1979, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

9.  The applicant was discharged on 23 May 1979 in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.  He was credited with 4 years, 5 months, and 5 days net active service this period.

10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, 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.  An under other than honorable conditions discharge was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7b, also 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to general.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows that during the applicant's second enlistment, he was charged with two specifications of wrongfully using his customs-free privileges regarding the importation of goods into the Republic of Korea for the purpose of realizing personal gain or profit; and two specifications of wrongfully and knowingly assisting a Korean National, a person not authorized to purchase duty free merchandise, to obtain duty free merchandise, both serious offenses.  The charges were referred to trial by special court-martial on 9 March 1979.

3.  The applicant could have appeared before a special court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly; instead, he requested discharge in lieu of facing a court-martial.

4.  The applicant's contentions have been noted; however, given the severity of the charges, his misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general under honorable conditions discharge.  The applicant has provided neither evidence nor a convincing argument to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.

5.  In the absence of information to the contrary, it is concluded that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  The applicant's desire to have his discharge upgraded is acknowledged; however, the Board does not change the type of discharge an individual receives based on having received an honorable discharge from a first enlistment.

7.  Eligibility for veterans' benefits does not fall within the purview of the Army; however, the applicant should contact a local office of the Department of Veterans Affairs (VA) to inform them of his earlier honorable period of service and seek a determination whether that entitles him to benefits administered by the VA.

8.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

9.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080005577



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ABCMR Record of Proceedings (cont)                                         AR20080005577


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