IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100012146 

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 general discharge to an honorable discharge.

2.  The applicant states he was told at the time of discharge that he could apply for an upgrade of his discharge from general to honorable.

3.  The applicant provided no additional documentary evidence 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 4 September 1990.  He completed training and he was awarded military occupational specialty 13B (cannon crewmember).  He was reassigned to Korea on 13 December 1990. 
3.  On 4 February 1992, charges were preferred against the applicant for engaging in a conspiracy to black market controlled items.  These charges were brought against the applicant as he was awaiting trial by court-martial on charges relating to the wrongful transfer of ration control documents.

4.  Special Court-Martial Order Number 1, issued by Headquarters, U.S. Army Element, Combined Field Army, Korea, dated 26 March 1992, shows the applicant was found guilty of the following offenses:

   a.  for the wrongful sale of ration control privilege documents for the purpose of selling them to a person to whom they were not issued; and

   b.  for the wrongful sale of ration control privilege documents to a person to whom they were not issued.

5.  On 30 April 1992, the applicant was notified by his unit commander of the initiation of action to separate him under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions discharge.  On the same date, the applicant acknowledged receipt of the notification.

6.  On 1 May 1992, the applicant was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense, and its effects; of the rights available to him; and the effect of action taken by him in waiving his rights.  He also understood that he was entitled to have his case considered by an administrative separation board because he was being considered for a separation under other than honorable conditions; however, he waived board action contingent upon receiving no less than a general discharge.

7.  He also understood that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further understood that if he receives a discharge less than honorable, he may make application to the Army Discharge Review Board or this Board for upgrading; however, an act of consideration by either board does not imply that his discharge would be upgraded.  He elected not to make any statement in his own behalf.

8.  On 4 May 1992, the applicant's commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for engaging in a conspiracy to blackmarket controlled items.
9.  On 15 May 1992, the separation authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with issuance of a General Discharge Certificate.  The applicant was discharged accordingly on 27 May 1992.  The DD Form 214 he was issued confirms he completed a 1 year, 7 months, and 25 days of total active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant engaged in a conspiracy to blackmarket controlled items while awaiting trial by court-martial on charges relating to the wrongful transfer of ration control documents.  Although the applicant's records show he completed over one year of good service prior to the incident, his previous actions do not meet the standard of acceptable conduct and performance of duty for Army personnel.

2.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100012146



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ABCMR Record of Proceedings (cont)                                         AR20100012146



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