IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20090017286 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge to ensure Department of Veterans Affairs (VA) claims and benefits.

2.  The applicant states that he was never charged with a crime and it was found that someone else committed the crime.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 4 June 1990.  He was discharged from the USAR DEP on 6 September 1990 and he enlisted in the Regular Army in the rank/grade of private (PV2)/E-2 on 7 September 1990 for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).  He served in Korea from 10 January 1991 to 9 January 1992.

3.  Records show the applicant was charged with multiple specifications of wrongfully using for personal use an AT&T calling card of other Soldiers between 11 May 1991 and 1 June 1991 for a total of $2,308.98.  He was also charged with wrongfully and unlawfully making under lawful oath a false statement.

4.  On 22 November 1991, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  He stated he understood he could request discharge for the good of the service because of the charges which had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct discharge.  He also acknowledged that he had not been coerced with respect to his request for discharge and he did not desire further military service.  He also acknowledged that he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected to submit a statement in his own behalf.  He requested a delay in the processing of all court-martial charges until final action on his request for discharge under the provisions of Army Regulation 635-200, chapter 10.

5.  In a statement, dated 26 November 1991, the applicant stated it was his first time away from home when he was assigned to Korea.  When he got the chance to call home he felt more secure.  At one time he had his own phone card, but someone used the number and made calls.  Once his card had been used by others, he didn’t care anymore and started looking for vengeance.  As time passed he began to realize what he had done was wrong and there was nothing he could do but tell the truth.  He felt that the Army was not for him and was truly hoping to be discharged and given the opportunity to start over.

6.  On 27 November 1991, the applicant’s first sergeant stated that having viewed the evidence, he found that the applicant was guilty of less than previously thought.  He recommended approval of the applicant’s request for a chapter 10.  If the request was not accepted, he recommended court-martial proceedings be reduced to a field grade Article 15 with reduction to the rank/grade of private (PV1)/E-1, payment of restitution, 45 days extra duty, and 1/2 month's pay per month for two months.

7.  In November 1991, the applicant’s company commander recommended disapproval of the request for discharge for the good of the service.  He stated that his recommendation was based on the fact that the applicant had been charged with serious violations of the UCMJ which warranted trial by court-martial.

8.  In November 1991, the applicant’s intermediate commanders recommended disapproval of the applicant’s requested discharge and concurred with the recommendation of the company commander.

9.  However, on 7 December 1991, the appropriate authority approved the applicant's request for discharge for the good of the service and directed he be issued an under other than honorable conditions discharge and reduction to PV1/E-1.

10.  The applicant was accordingly discharged on 8 January 1992 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was also reduced to PV1/E-1.  His service was characterized as under other than honorable conditions.  He was credited with completing 1 year, 4 months, and 2 days of net active service.

11.  On 18 December 1996, the Army Discharge Review Board denied the applicant‘s request for an upgrade of his discharge.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be 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.

2.  The applicant's contentions have been noted.  The evidence shows that the applicant requested to be discharged under the provisions of Army Regulation 635-200, chapter 10, because court-martial charges preferred against him which authorized the imposition of a bad conduct discharge.  In doing so, he admitted guilt to the offenses.  He also acknowledged that he could be discharged under other than honorable conditions and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial if he felt he was being wrongfully charged or that he was being treated unfairly based on the charges.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  The applicant's desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20090017286



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ABCMR Record of Proceedings (cont)                                         AR20090017286



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