IN THE CASE OF:	 

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080012059 


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 discharge. 

2.  The applicant states, in effect, that his discharge, which resulted from his civil conviction, was too harsh.  He further states that one early morning during his service in Korea, he was driving a military van and returning to his camp when he accidently hit a Korean National.  A cab driver saw the accident and followed him to camp.  He was turned over to the Korean authorities and was tried in a Korean court. 

3.  The applicant did not provide any additional documentary evidence in support of his application.  

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 records show that he enlisted in the Regular Army for a period of 3 years and 16 weeks on 19 August 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records show he served in Korea from 25 June 1985 to 24 June 1987.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Good Conduct Medal.  His records do not reveal any significant acts or achievements during his military service.

4.  On 21 May 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana, between 24 March 1985 and 2 April 1985; and wrongfully using some amount of cocaine, between 24 March 1985 and 2 April 1985.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $310.00 pay for 2 months (suspended for 6 months), 45 days of extra duty (suspended for 6 months), and 45 days of restriction (suspended for 6 months).

5.  On 21 October 1986, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-5 of Army Regulation (AR) 635-200 (Personnel Separations) for misconduct-conviction by civil court.  Specifically, the immediate commander cited the applicant’s conviction by civil court and poor service record.

6.  The facts and circumstances surrounding the applicant's accident in Korea and his subsequent trial and/or conviction by a Korean court are not available for review with this case.

7.  On 25 October 1986, the applicant’s intermediate commander recommended approval of the applicant’s discharge.

8.  On 4 November 1986, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct-conviction by civil authorities.   The DD Form 214 he was issued confirms he was discharged on 25 June 1987 with a character of service of under other than honorable conditions.  This form further confirms that the applicant completed 3 year, 10 months, and 7 days of creditable active military service.
9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

10.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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 facts and circumstances surrounding the applicant's accident and/or his conviction in Korea are not available for review with this case; however, the evidence of record shows that the applicant's immediate commander initiated separation action against him as a result of his misconduct-conviction by a civil court, and as required by regulatory guidance, and that his discharge was approved by the separation authority.



2.  The ABCMR does not reexamine the issue of guilt or innocence under a civil conviction by a foreign host nation.  This is the court's function.  The applicant's case has already been adjudicated through the legal system.  Here, the applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20080012059



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ABCMR Record of Proceedings (cont)                                         AR20080012059



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