IN THE CASE OF:	

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080017293 


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 Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to a General Discharge (characterized as under honorable conditions).

2.  The applicant states that he was going back to the United States to attend Drill Sergeant School and he wanted to bring some stereo equipment to put in his room.  He did not believe he had done anything wrong.  However, he was told he could either go to jail or request a discharge.  The applicant states that he has an unblemished record other than this incident and asks that his lengthy period of honorable service be used to mitigate his discharge.

3.  The applicant provides two DD Forms 214 (Report of Separation from Active Duty), his DA Form 2-1 (Personnel Qualification Record), a letter of commendation and a letter 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's military records show that he enlisted in the Regular Army on 21 March 1968.  He was awarded the military occupational specialty of quartermaster light equipment repairman, and was promoted to pay grade E-4.  

3.  The applicant immediately reenlisted on 20 January 1970, was promoted to pay grade E-5, and served in Vietnam as a wheel vehicle mechanic.

4.  The applicant immediately reenlisted on 2 February 1977.  He was promoted to staff sergeant, pay grade E-6, and served in Korea from 11 October 1982 to 11 October 1983.

5.  On 16 November 1983, court-martial charges were preferred against the applicant for wrongfully possessing a letter of authorization issued by other than competent authority; wrongfully failing upon the request of military law enforcement personnel to present valid and bonafide information or documentation showing the continued possession or lawful disposition of controlled items as acquired, brought into the Republic of Korea duty-free, to wit: a Sony video cassette recorder and music system; wrongfully failing upon the request of military law enforcement personnel to present valid and bonafide information or documentation showing the continued possession or lawful disposition of items acquired in or brought into the Republic of Korea duty-free that were not controlled items and cost more than $35.00, to wit:  a Gold Star cassette radio, a Sony video recorder, and a set of car speakers; and for attempting to wrongfully use a letter of authorization issued by other than competent authority.

6.  On 29 November 1983, the applicant submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial.  In that request he admitted guilt to the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also acknowledged that he could receive an UOTHC discharge if his request was approved.

7.  The applicant's request was approved by the appropriate authority and he was separated with a UOTHC discharge on 14 December 1983.  He had completed a total of 15 years, 8 months and 25 days of active service.

8.  On 2 April 1986, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade.  In the ADRB's deliberation, it noted "that the applicant's service during his previous enlistment was outstanding.  The Board also found that the applicant's service prior to the [incident] which led to his separation was outstanding."

9.  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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

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.

11.  Army Regulation 600-200, paragraph 6-11, requires the automatic reduction to pay grade E-1 when a Soldier receives an UOTHC discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct in that he had unblemished service prior to his court-martial charges.

2.  However, the severity of the charges preferred against the applicant have to be taken into consideration.  Those charges were for, simply stated, producing a forged document to allow him to transport a stereo system home with him duty-free.

3.  The applicant was a noncommissioned officer with 15 years of active service and knew, or should have reasonably known, that he was using a forged document to accomplish something which was in contravention of the UCMJ.  As such, the applicant's contention that he did not know he was doing anything wrong is not accepted.

4.  Notwithstanding the applicant's previous unblemished service, the severity of the charges preferred along with the clear intent to commit an offense punishable under the UCMJ certainly warranted an UOTHC 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 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)                                         AR20080017293



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017293



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1