IN THE CASE OF:	 

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080017928 


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 1987 discharge under other than honorable conditions be upgraded. 

2.  The applicant states his discharge was inequitable in that it was based on one isolated incident during his 18 months of service.  He notes there were no other adverse actions or convictions.  The applicant also states he was unaware that he could request that his discharge be upgraded.

3.  The applicant provides a copy of his 1987 separation document but no other additional evidence in support of his request.

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.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

3.  Records available to the Board indicate the applicant entered active duty as an enlisted Soldier on 8 January 1986.  He successfully completed training as a medical specialist and in June 1986 arrived at his first permanent duty station in Korea.  He was promoted to pay grade E-2 on 8 July 1986.

4.  On 31 August 1986 the applicant and another enlisted Soldier were involved in an incident in Korea which resulted in the conviction of both Soldiers of “robbery resulting in injuries.”  The incident involved the attack on a civilian Korean cab driver (one of the Soldiers hit the cab driver in the face with a beer bottle while the other strangled the victim from the back seat).  The cab driver was then robbed of 35,000 Korean wan (about $45.00).  The applicant and the other Soldier were convicted in the Seoul Criminal District Court in December 1986 and sentenced to imprisonment for a maximum of three years and a minimum of two years.

5.  On 17 February 1987 the applicant acknowledged receipt of a proposed separation action under the provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of his conviction by the Seoul District Criminal Court.  The applicant noted his commander was recommending discharge under other than honorable conditions.

6.  The applicant signed a conditional waiver on 5 March 1987 waiving his right to an administrative separation board.  The waiver was contingent upon his receiving a characterization of service of no less favorable than a general discharge.  However, on 8 April 1987 the Commanding General, 2nd Infantry Division, directed that an administrative separation board be convened to determine whether the applicant should be discharged before the expiration of his term of service as a result of his conviction by civilian authorities.

7.  A board of officers convened on 5 June 1987 and ultimately recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The board recommended discharge under other than honorable conditions.  On 16 June 1987, the appropriate separation authority approved the discharge and directed the applicant be discharged under other than honorable conditions.

8.  The applicant was discharged under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense.
9.  Records available to the Board do not indicate the applicant was ever awarded any personal decorations or his military service recognized in any way beyond promotion to pay grade E-2.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.

11.  Paragraph 14-12c of the same regulation specifically provided for the separation of Soldiers as a result of commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge would have been authorized for the same or a closely-related offense under the Manual for Courts-Martial.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for the offense of robbery.

13.  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.  

14.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  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 applicant’s contention that his discharge was inequitable because it was based on a single isolated incident has been considered.  However, the applicant has not shown that his military service was so exceptional as to overcome the 
seriousness of the incident which ultimately resulted in his discharge.  The assault and robbery of a foreign national that led to his discharge was a serious act of misconduct.  

3.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting an honorable discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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.



      _________xxx_____________
               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)                                         AR20080017928



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ABCMR Record of Proceedings (cont)                                         AR20080017928



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