IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100020267 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  The applicant states it would be appropriate to upgrade his discharge based on the circumstances surrounding the incident that led to his discharge and based on the limited information that was available to the commander at the time of his discharge.  

3.  In support of his application, the applicant provides a self-authored statement outlining the circumstances surrounding the incident that led to his discharge and the reasons he believes his discharge should be upgraded. 

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 record shows he enlisted in the Regular Army on 11 March 1985, and he was trained in and awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  The record further shows he was promoted to specialist four/E-4 (SP4/E-4) on 1 July 1987, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 22 July and 
16 August 1989.  It also includes his accrual of 4 days of time lost due to two separate periods of being absent without leave (AWOL) between 7 July and 
15 August 1989.  

4.  On 16 February 1990, the Seoul Criminal District Court, Korea convicted the applicant of robbery resulting in injuries.  

5.  On 12 April 1990, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of chapter 14, Army Regulation 635-200, and that he was recommending the applicant receive a UOTHC discharge.  The commander cited the applicant’s conviction in a foreign court as the basis for taking the action. 

6.  On 12 April 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant initially requested his case be considered by a board of officers.  

7.  On 13 June 1990, the Seoul High Court, Korea, reduced the applicant’s sentence to 2 years imprisonment, suspended for 3 years.  The Chief, Judge advised the applicant that he should be immediately released from confinement based on the charges filed by the Republic of Korea.  

8.  On 26 June 1990, the applicant agreed to unconditionally waive his right to a board of officers.

9.  On 12 July 1990, the separation authority directed the applicant’s discharge under the provisions of chapter 14, Army Regulation 635-200, with a UOTHC discharge.  On 25 July 1990, the applicant was discharged accordingly.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (commission of a serious offense), with a UOTHC discharge.  It also shows at the time of his discharge he had completed 5 years, 4 months, and 
7 days of creditable active military service, and he had accrued 8 days of time lost due to being AWOL.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  A general discharge (GD) may be directed by the separation authority if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate:  

   a.  Paragraph 3-7a of the same regulation states an honorable discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law.  It further states an HD 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.  
   
   b.  Paragraph 3-7b states a GD 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 HD.  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 contention that his discharge should be upgraded because it was unjust and because his chain of command's lacked familiarity with the circumstances surrounding the incident that led to his conviction in a foreign court during his discharge processing has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record documents no acts of valor or significant achievement, but it does reveal a significant disciplinary history that includes his acceptance of NJP on three separate occasions prior to the incident that ultimately led to his conviction in a foreign court and discharge.  

4.  Given the applicant’s record of misconduct prior to the incident that led to his discharge processing, and the gravity of the offense for which he was convicted in a foreign court, his overall record of service was not sufficiently meritorious to support the issuance of a GD or an HD at the time of discharge, and does not support an upgrade of his discharge.  

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)                                         AR20100020267



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ABCMR Record of Proceedings (cont)                                         AR20100020267



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