BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100011003 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the type of discharge he received was too harsh.

3.  The applicant provides no additional documents.

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.  On 7 June 1978, the applicant enlisted in the Regular Army for 4 years, in the pay grade of E-1.  He completed training as a wire systems installer.  He remained on active duty through four reenlistments and he was promoted through the ranks to staff sergeant/E-6.

3.  On 13 June 1990, charges were preferred against the applicant for the following reasons:

* Wrongfully signing another's signature on a document used in selling a U.S. Forces Korea (USFK) Form 46 (Temporary Privilege Authorization) made out in the name of another Soldier 
* Wrongfully using an official U.S. Military Identification Card and a USFK Form 46 made out in another Soldier's name
* Wrongfully transferring a refrigerator, purchased in a USFK duty free sales facility, without following the procedures prescribed by USFK regulations
* Unlawfully striking another Soldier in the head and face with this hand
*  With intent to deceive, wrongfully and falsely altering military identification cards made out in the names of other Soldiers (three specifications)

4.  He was notified that charges were pending against him for the above stated offenses on 13 June 1990.

5.  The applicant's request for discharge is not in his official military record.  However, his record shows that on 6 July 1990 the appropriate authority approved his request for 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.  A discharge under other than honorable conditions was directed. 

6.  Accordingly, on 25 July 1990, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 12 years, 1 month, and 19 days of net active service.

7.  On 26 March 1997, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of his discharge.

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

9.  Paragraph 3-7a of Army Regulation 635-200 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.

10.  Paragraph 3-7b of Army Regulation 635-200 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 contentions have been considered.  There is no evidence in the available record, nor has he submitted any evidence, to show that the type of discharge he received was too harsh.

2.  He was discharged in accordance with applicable laws and regulations in effect at the time and the type of discharge directed was appropriate consideration all the facts of his case.

3.  His records indicate he submitted a voluntary request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority approved his request for discharge and based his numerous acts of misconduct, it does not appear that his discharge under other than honorable conditions was too harsh.

4.  In view of the foregoing, there is no basis for granting the applicant's request.







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)                                         AR20100011003



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ABCMR Record of Proceedings (cont)                                         AR20100011003



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