IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090006702 


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 discharge be upgraded to a general under honorable conditions or an honorable discharge.

2.  The applicant states that he was found not guilty of attempted robbery.  He continues that he was found guilty of only minor offenses, violating barracks policy, and communicating a threat.  He adds that he was given a general court-martial because of the nature of the offense he was accused of, attempted robbery of a Korean taxi driver, but was found not guilty.

3.  The applicant provides a third-party letter 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 enlisted in the Regular Army on 18 August 1977 for 3 years.  Upon completion of initial entry training he was awarded military occupational specialty 76J (Medical Supply Specialist).  

3.  On 17 June 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

	a.  willfully and wrongfully damaging the windshield of a "KOAX" taxi by striking it with his fist, the amount of said damage being in the sum of about $130.00;

	b.  disobeying a lawful order from his superior noncommissioned officer;

	c.  treating with contempt his superior noncommissioned officer by throwing a curtain at him; and

	d.  willfully and wrongfully damaging a private residence, the amount of said damage being in the sum of about 30,000 won.

4.  The applicant reenlisted on 21 July 1980 for 3 years.

5.  On 18 December 1980, the applicant was convicted by a general court-martial of assault.  He was sentenced to be reduced to the grade of E-1, forfeiture of $300.00 per month for 2 months, and confinement at hard labor for 2 months.

6.  A DA Form 4187 (Personnel Action), dated 6 February 1981, shows the applicant's duty status changed from confined by military authorities to present for duty effective 6 February 1981.

7.  On 4 March 1981, the applicant accepted NJP under Article 15, UCMJ, for wrongfully having 0.15 grams, more or less, of marijuana in his possession.

8.  A DA Form 4187, dated 19 March 1981, shows the applicant departed absent without leave (AWOL) on 18 March 1981.

9.  A DA Form 4187, dated 26 May 1981, shows the applicant returned to military control on 19 May 1981.

10.  A DA Form 4187, dated 10 June 1981, shows the applicant's duty status changed from present for duty to confined by military authorities effective 5 June 1981.

11.  The court-martial charge sheet is not available.
12.  On 3 June 1981, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial after consulting with legal counsel.  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 against him or of a lesser included offense 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.

13.  The applicant was advised of the effects of a discharge under other than honorable conditions, that he might be ineligible for many or all Army and Veterans Administration benefits, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.

14.  On 17 June 1981, the appropriate authority approved the applicant's request and directed he receive a discharge under other than honorable conditions.

15.  On 18 June 1981, the applicant was discharged with an under other than honorable conditions characterization of service.  He completed 3 years, 6 months, and 3 days of creditable active service.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he had 118 days of time lost due to AWOL and confinement.

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

17.  The applicant provided a third-party letter which attests to the applicant's character.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.

19.  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.

20.  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 reviewed and found to be without merit.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial is presumed to have been administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's record of indiscipline includes punishments under Article 15, UCMJ; a general court-martial conviction; confinement by military authorities; and 118 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit 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)                                         AR20090006702



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ABCMR Record of Proceedings (cont)                                         AR20090006702



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