BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100012721 


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 an upgrade of his discharge under other than honorable conditions to an honorable discharge.  He also requests correction of the rank, pay grade, and military occupational specialty (MOS) shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he made statements to his commanding officer to try to explain his situation in an effort to solve his problems; however, the ensuing investigation against him wasn't fair.  He also states he was forced to sign a "voluntary" request for discharge without being given any other options.

	a.  He adds he served in the U.S. Army for over 10 years, his discharge was unjust, and he has suffered miserably over the past 20 years as a result of his discharge.

	b.  He states that his DD Form 214 should also be corrected to show his rank as staff sergeant (SSG); his pay grade as E-6; and that his MOS was 00R3O (Retention Noncommissioned Officer (NCO)/Career Counselor).

3.  The applicant provides copies of documents from his military personnel records including a letter of commendation, four evaluation reports, an Army Achievement Medal Certificate, reclassification documents, an Honorable Discharge Certificate, separation orders, an Armed Forces Identification Card, a DA Form 2A (Personnel Qualification Record – Part I), and a DA Form 2-1 (Personnel Qualification Record – Part II).

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 for a period of 3 years on 4 June 1980.  Upon completion of training he was awarded MOS 71L (Administrative Specialist).

3.  The applicant reenlisted on several occasions to continue to serve on active duty with a final reenlistment for a period of 3 years on 5 April 1989.

4.  The applicant's DA Form 2-1 shows in:

	a.  item 6 (Military Occupational Specialties) that he was awarded MOS 71L2O on 2 October 1980 and

	b.  item 18 (Appointments and Reductions) he was promoted to SSG/E-6 on 1 August 1989.

5.  Headquarters, 199th Personnel Service Company, Korea, Order 161-104, dated 1 August 1989, promoted the applicant to SSG and awarded him primary MOS (PMOS) 00R3O effective 1 August 1989.

6.  On 16 August 1989, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully and unlawfully making and uttering numerous checks upon the service of United Services of America Federal Credit Union from 29 April 1989 to 24 May 1989 with intent to defraud and for the procurement of lawful currency in violation of Article 123a, UCMJ.  His punishment consisted of forfeiture of $681.00 pay for 2 months, $631.00 pay for 2 months (suspended, to be automatically remitted if not vacated before 16 February 1990) and 45 days of extra duty.

7.  A DA Form 4187 (Personnel Action), dated 28 September 1989, shows the applicant's commander requested withdrawal of the applicant's PMOS of 00R3O (and reclassification, if necessary) based on the applicant's failure to maintain personal and professional standards of conduct.

8.  Message, Commander, U.S. Army Personnel Command, Alexandria, Virginia, dated 251111Z October 1989, subject:  Reassignment from 00R Retention, directed the reclassification of the applicant from PMOS 00R to 71L effective 30 October 1989.  It also directed that MOS 00R not be retained as the applicant's secondary MOS.

9.  A DD Form 458 (Charge Sheet) shows that on 1 November 1989 court-martial charges were preferred against the applicant for, on divers occasions in September and October 1989 in the Republic of Korea:

* violation of Article 134, UCMJ, by:

* wrongfully using and possessing an official military identification card with intent to deceive
* wrongfully possessing a blank official military dependent identification card with intent to deceive

* violation of Article 92, UCMJ, by:

* wrongfully and knowingly possessing and using a counterfeit temporary ration control plate
* wrongfully transferring duty-free goods and tax-free goods of Korean origin to a person not authorized duty-free import or tax-free purchase privileges

10.  The applicant consulted with legal counsel and he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.

	b.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	c.  The applicant acknowledged he understood that there is no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or this Board if he desired a review of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

	e.  He requested a delay in the processing of all court-martial charges against him pending final action on his request for discharge.

11.  On 9 November 1989, the immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.

12.  On 13 November 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to the rank/grade of private (PV1)/E-1.

13.  A DA Form 4187, dated 1 December 1989, shows the applicant's duty status was changed from present for duty to absent without leave (AWOL) effective 0800 hours, 27 November 1989.

14.  A DD Form 458 shows that on 21 June 1990 court-martial charges were preferred against the applicant for violation of Article 86, UCMJ, for being AWOL from 27 November 1989 and remaining absent.

15.  A DD Form 616 (Report of Return of Absentee) shows the applicant surrendered to military authorities on 5 February 1991.

16.  Headquarters, U.S. Army Garrison, Presidio of San Francisco, California, Orders 78-006, dated 23 April 1991, reassigned the applicant to the U.S. Army Transition Point, Presidio of San Francisco, for separation processing and discharge on 23 April 1991.  The orders show the applicant's rank as PV1.

17.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 4 June 1980 and he was discharged on 23 April 1991 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  At the time he had completed 9 years, 7 months, and 23 days of net active service this period.

	a.  Item 4a (Grade, Rate or Rank) shows the entry "PV1," item 4b (Pay Grade) shows the entry "E1," and item 12h (Effective Date of Pay Grade) shows the entry "89  11  13" [13 November 1989].

	b.  Item 11 (Primary Specialty) shows the entry "71L1O, Administrative Specialist, 10 years and 4 months."

	c.  Item 18 (Remarks) shows he had continuous honorable active service from 4 June 1980 through 27 November 1989.

	d.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 14 November 1989 through 4 February 1991.

18.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

19.  In support of his application, the applicant provides the following documents.

	a.  A letter of commendation, dated 7 January 1983, that commends the applicant for his outstanding performance in achieving a score of 100 percent on his Skill Qualification Test.

	b.  Three evaluation reports covering the period May 1985 through May 1988 that show the applicant was rated successful in the performance of his duties in MOS 71L2O.

	c.  One evaluation report covering the period June 1988 through April 1989 that shows the applicant was rated "Among the Best" in the performance of his duties in MOS 00R3O (Assistant Operations NCO).

	d.  An Army Achievement Medal Certificate shows the applicant was awarded the Army Achievement Medal for exceptional achievement from 9 October 1986 to 30 October 1987 as the Forms and Publications NCO.

	e.  A U.S. Army Soldier Support Institute Recruiting and Retention School Certificate shows the applicant graduated from the Retention NCO Course on 21 March 1989 and a memorandum, dated 27 March 1989, requested his reclassification from PMOS 71L2O to PMOS 00R.

	f.  A DD Form 256A (Honorable Discharge Certificate) shows the applicant was honorably discharged from the U.S. Army on 4 April 1989.

	g.  A DD Form 2A (Armed Forces Identification Card), issued on 15 February 1991, shows the applicant's grade as SSG/E-6.

	h.  Headquarters, 199th Personnel Service Company, Order 55-183, dated 25 March 1991, reassigned the applicant to the U.S. Army Transition Point, Presidio of San Francisco, for separation processing and release from active duty on 30 April 1991.  The orders show the applicant's rank as SSG.

20.  The Manual for Courts-Martial Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days; Article 92 for failure to obey an order or regulation; and Article 134 (General Article) for all disorders and neglects to the prejudice of good order and discipline in the Armed Forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons may be guilty.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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.

22.  Army Regulation 635-5 (Personnel Separations - Separation Documents) in effect at the time of the applicant's separation from active duty prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contained guidance on the preparation of the DD Form 214.  It stated that the source documents for entering information on the DD Form 214 would be the Personnel Qualification Record, Officer Record Brief, enlistment/
reenlistment documents, personnel finance records, discharge documents, separation orders, military personnel records jacket, or any other document authorized for filing in the official military personnel file.

	b.  Table 2-1 (DD Form 214 Preparation Instructions) contained item-by-item instructions for completing the DD Form 214.  The instructions for:

		(1)  items 4a and 4b stated to enter the active duty grade of rank and pay grade at the time of separation;

		(2)  item 12 stated use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc., are based upon the information contained herein.  For item 12h, enter the effective date of pay grade; and

		(3)  item 11 stated to enter the PMOS or area of concentration (AOC) and all additional MOS/AOC service for a period of 1 year or more, during the Soldier's continuous active military service.  For each MOS/AOC, list the title with the years and months served.  In determining time eligibility for listing of specialty, 16 days or more count as a month; however, do not count basic combat training and advanced individual training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because the investigation against him wasn't fair and he was forced to sign a "voluntary" request for discharge without being given any other options.  He also contends that the rank, pay grade, and MOS shown on his DD Form 214 are incorrect.

2.  The evidence provided by the applicant was carefully considered.

	a.  The applicant acknowledged that he had not been subjected to coercion with respect to his voluntary request for discharge.  He was afforded the opportunity to consult with counsel.  He was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  Thus, the evidence of record refutes the applicant's contention that he was forced to sign his request for discharge without being given any other options.

	b.  The letter of commendation, evaluation reports, Army Achievement Medal, certificate of training, and Honorable Discharge Certificate show the applicant had successful and honorable service from 7 January 1983 to 4 April 1989.  It is noted that the applicant's period of honorable service from 4 June 1980 through 27 November 1989 is documented on the applicant's DD Form 214.

	c.  The Armed Forces Identification Card the applicant provides was issued on 15 February 1991 and shows his rank/pay grade as SSG/E-6.  The orders he provides reassigning him to the U.S. Army Transition Point show his directed release from active duty (i.e., not discharge) in the rank of SSG on 30 April 1991, not 23 April 1991.

	d.  During the period of service under review the applicant was charged with violation of Article 134, UCMJ, for wrongfully using and possessing an official military identification card with intent to deceive.  Thus, the authenticity of the Armed Forces Identification Card the applicant provides is called into question.  Moreover, the orders he provides in support of his request are not consistent with the applicant's approved request for discharge because the orders release the applicant from active duty.  Conversely, the applicant's discharge orders are consistent with the applicant's approved request for discharge.

3.  The evidence of record shows the applicant was:

* awarded PMOS 71L2O on 2 October 1980
* awarded PMOS 00R3O on 1 August 1989
* reclassified out of PMOS 00R3O on 30 October 1989
* awarded PMOS 71L30 on 30 October 1989

	a.  The applicant was reduced to PV1/E-1 on 13 November 1989, which caused his PMOS skill level to change from 71L3O to 71L1O.  Thus, the MOS recorded in item 11 of his DD Form 214 is correct.

	b.  The applicant held PMOS 00R3O for a total of 3 months.  Thus, he did not meet the required period of service of 1 year or more for the MOS to be recorded on his DD Form 214.  Therefore, the applicant is not entitled to correction of item 11 of his DD Form 214 to show MOS 00R.

4.  The evidence of record shows the separation authority approved the applicant's request for discharge on 13 November 1989 and directed the applicant's reduction to the rank/grade of PV1/E-1.  The evidence of record also shows the applicant's rank, pay grade, and effective date of pay grade at the time of his discharge are correctly recorded on his DD Form 214.

5.  The applicant's 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 was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

6.  During the period of service under review, records show the applicant:

* received NJP for violation of Article 123a, UCMJ
* was charged with:

* two specifications of Article 92, UCMJ
* two specifications of Article 134, UCMJ
* one specification of Article 86, UCMJ, for being AWOL from 14 November 1989 through 4 February 1991 [1 year, 2 months, and 21 days]

	a.  Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

	b.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

7.  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.  Therefore, 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)                                         AR20100012721



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ABCMR Record of Proceedings (cont)                                         AR20100012721



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