IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080007083 


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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable or no less than general under honorable conditions.

2.  The applicant states that his discharge was disproportionately harsh compared to that received by many other Soldiers in his unit.  He had many commendations and/or letters of achievement and/or other acknowledgements of his exemplary duty prior to the one incident for which he was discharged.  He does not believe he was afforded adequate legal counsel and/or representation.  Many of his supervisors had, he believes, recommended that less stringent action be taken against him.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a certificate of achievement; three “Run for Your Life certificates, one dated 4 November 1980, one dated 6 January 1981, and one dated 7 January 1981; four certificates of training, one dated 20 September 1982, one dated 9 March 1981, one dated 3 November 1982, and one undated; assignment orders, dated 27 May 1982; an assignment endorsement, dated January 1981; and a certificate of appreciation.

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 September 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle and Power Generation Mechanic).  He was assigned to Korea on or about 30 July 1982.

3.  The applicant’s records contain a DA Form 2823 (Sworn Statement), dated 25 February 1983.  In this statement, the applicant stated that in July 1982 he was approached by a Korean man who asked the applicant if he wanted to make some money.  The applicant said “yes.”  From then until 20 October 1982, he bought and transferred groceries, irons, cassette players, toasters, video cassettes, china, etc., to the Korean.  He met with the Korean again in December 1982, and he told the Korean he had been caught for black-marketeering.  The Korean asked him if he wanted to make more money.  He talked to another Korean, and told that Korean that if he got busted again for black-marketeering that the Korean was going down with him.  The applicant stated that every chance he got he would go back to Yongsan to make some money (black-marketeering).

4.  On 4 April 1983, court-martial charges were preferred against the applicant charging him with one specification of being disrespectful in language to his superior noncommissioned officer, with one specification of disobeying a lawful order, and with two specifications of black-marketeering.

5.  On 22 April 1983, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  He acknowledged that prior to completing his request he was afforded the opportunity to consult with appointed counsel for consultation and that he had consulted with counsel.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

6.  On 3 May 1983, the appropriate authority approved the applicant’s request and directed the applicant receive a discharge UOTHC.

7.  On 11 May 1983, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 2 years, 8 months, and 2 days of creditable active service with no lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

9.  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.

10.  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.  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.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant contended that he believed he was not afforded adequate legal counsel and/or representation.  However, in his request for discharge he acknowledged that prior to completing his request he was afforded the opportunity to consult with appointed counsel for consultation and that he had consulted with counsel.  There is no evidence to show that he was inadequately counseled.

3.  The applicant may have received several commendations and/or letters of achievement and/or other acknowledgements of his exemplary duty prior to the incident for which he was discharged.  However, he was not discharged for just one incident.  In his February 1983 sworn statement he stated that he had been involved with the black market almost since the day he arrived in Korea and that he continued being involved with the black market even after being caught one time.

4.  Given the seriousness of the offenses for which he was charged, which included multiple incidents of black-marketeering, the type of discharge he was given was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  __xx____  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.



      ________xxxx_____________
                 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)                                         AR20080007083



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ABCMR Record of Proceedings (cont)                                         AR20080007083



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