IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090018768 


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 1992 discharge under other than honorable conditions be upgraded.

2.  The applicant states his discharge was unjust and based on fear.  He states he purchased the equipment that was taken from his house over a period of time during his military career.  He states he elected to sign the documents presented to him because he was scared, confused, and worried about family problems.  He notes his mother had been diagnosed with cancer and needed him so he decided to sign the papers.

3.  The applicant states 6 months after his discharge he began working as a parole officer and he has worked in this capacity for more than 14 years.  He states he wants to be proud to say he was in the Army.

4.  The applicant provides 15 letters of support, 14 of which are identical except for the signatures.  He submits copies of what appear to documents associated with his separation processing in the form of a 1992 statement from a civilian employee in Texas stating military equipment is for sale in surplus stores, including one in Houston, Texas.  He also submits several certificates dated between 1994 and 2007 reflecting completion and participation in various educational courses.




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 8 September 1981.  He was training as a unit supply sergeant and by July 1987 had been promoted to the rank of staff sergeant.  His service was recognized by multiple awards of the Army Achievement Medal and Army Good Conduct Medal and he was awarded at least one Army Commendation Medal according to documents contained in his Official Military Personnel File (OMPF).

3.  In January 1988 the applicant was assigned to the United States Army Garrison in Puerto Rico.  In March 1992 he was charged with two specifications of selling a total of 24 ballistic vests, the property of the United States military.  On 19 August 1992, the applicant, after consulting with counsel, voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of being tried by court-martial.  He acknowledged he understood he could receive a discharge under other than honorable conditions as a result.  He also indicated he understood such a discharge could result in the denial of veteran's benefits under State and Federal laws.

4.  The appropriate authority approved the applicant’s request and he was discharged on 21 September 1992.  His service was characterized as under other than honorable conditions.  He completed 11 years and 13 days of creditable active Federal service.

5.  The applicant’s record does not contain any evidence that shows he applied to the Army Discharge Review Board to have his discharge upgraded.




6.  One of the statements submitted by the applicant on his behalf is from a retired Army sergeant major who was stationed with the applicant in Panama.  He states the applicant lived by discipline and followed Army rules and regulations.  The retired sergeant major indicated he is “baffled to know that [the applicant] was given an other than honorable conditions discharge” and asks that this situation be rectified immediately.

7.  The 14 statements, which are identical but signed by different individuals, indicate the signers of the statement work with the applicant at the Correctional Office in Ponce and Mayaguez, Puerto Rico and “give complete faith that [the applicant] is an honest, sincere and straight up human being” and as such recommends that his discharge be “rectified by the Discharge Review Board.”

8.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

   b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

   c.  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 argues his discharge was unjust and that he signed his separation documents out of fear.  However, the applicant provides no evidence which substantiate this argument.

2.  The applicant’s discharge under other than honorable conditions was appropriate considering the basis for the separation action.  His records show he requested discharge for the good of the service in lieu of trial by court-martial.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

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

4.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading the characterization of one's service.

5.  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 the aforementioned 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)                                         AR20090018768



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ABCMR Record of Proceedings (cont)                                         AR20090018768



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