IN THE CASE OF:	  

		BOARD DATE:	        21 May 2009

		DOCKET NUMBER:  AR20090001317 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge. 

2.  The applicant states, in effect, that he completed four tours of enlistment and served honorably on three of them.  He also states, in effect, that he would like his last discharge upgraded so he could buy back his time with the Department of Veterans Affairs (VA), where he works.  He concludes by stating, in effect, that he violated some laws, does not deny any of the charges brought against him, and that he is sorry for what happened which resulted in him being discharged with only 2 years left until he was eligible to retire.

3.  The applicant provides a self-authored statement and a copy of his separation documents in support of this 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 reenlisted in the Regular Army on 13 March 1984 after having previously served honorably for 14 years, 2 months, and 13 days.
He completed the required training and was awarded military occupational specialty (MOS) 96B (Intelligence Analyst).  The highest rank he attained while serving on active duty was staff sergeant (E-6).

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

4.  On 18 November 1987, charges were preferred against the applicant for on or about 28 October 1987, wrongfully failing to present, upon request of the Investigator, valid and bona fide information or documentation showing the continued possession or lawful disposition of various controlled items and various accountable items listed in the United States Status of Forces Regulation 60 -1  and various other items brought into Korea free of duty or acquired in Korea free of duty or tax, including two sets of Infinity Speakers of a total value of about $940.00, four Sony Televisions of a total value of about $2,97.00, two Goldstar Video Recorders of a value of about $520.00, one Panasonic Video Cassette Recorder of a value of about $270.00, and one Kenwood Music System of a value of about $930.00, all of a combined values of about $7,707.00.  

5.  On 14 December 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 
discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

7.  On 29 December 1987, the separation authority directed that the applicant be separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service and that he receive an under other than honorable conditions discharge.  On 27 January 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time confirms the applicant completed a total of 18 years, 1 month, and 4 days of creditable active military service.

8.  On 13 October 1988, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations), in pertinent part, describes the program of instruction concerning the benefits derived from receiving an honorable discharge from the Army.  This program of instruction explains that the consequences of receiving a other-than-honorable discharge can have a lasting adverse effect on the individual Soldier.  The program affects all active Army enlisted personnel and Reserve Component enlisted personnel on active duty 180 days or more.

10.  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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 applicant’s contention that his discharge should be upgraded was carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant voluntarily requested and accepted a discharge in lieu of court-martial for wrongfully failing to present, upon request of the investigator, valid and bona fide information or documentation showing the continued possession or lawful disposition various controlled items and various accountable items listed in the United States Status of Forces  agreement.

3.  Based on his disciplinary record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant either an honorable or a general discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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

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)                                         AR20090001317



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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