IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100020865 


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 under other than honorable conditions (UOTHC) discharge to an honorable or a general discharge.

2.  He states he does not believe it is appropriate to give him a UOTHC discharge based on one incident which occurred in his last 6 months of service considering he had 8 years of exemplary, unblemished service.  In addition, since his offense had no victims, caused no harm, and caused no loss of money, it did not meet the criteria for a UOTHC discharge.

3.  He explains that he was charged with two charges with two specifications each.  The first was thrown out by his commander when it was originally brought up because it was based on false allegations made by the person who bought his motorcycle.  The applicant states "In all honesty, I did not commit this crime."

4.  This charge was resurrected when he was charged for another offense.  The same Special Agent (SA) was assigned to the case and said that he got away once and she was going to get him this time.

5.  The applicant admits having a lapse of judgment in accepting the full amount of items in refunds when he purchased the items for lesser amounts on sale.  Before his case began he was informed that he had been overpaid.  He then voluntarily paid back the excess money he received.  He says he does not understand how he can pay whatever money he was accused of stealing, be truthful about what happened, and still be treated like this.
6.  The applicant provides a DD Form 214 worksheet; his request for discharge; a letter from his defense counsel, dated 2 April 2008; three honorable discharge certificates; a congratulatory letter from a general officer, dated 5 September 2007; and four letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 June 2000, he was awarded the military occupational specialty of signal intelligence analyst, and he was promoted to pay grade E-6.

2.  On 28 September 2007, court-martial charges were preferred against the applicant for:

	a.  with intent to deceive, make to a SA an official statement to wit:  to my knowledge I sold Mr. Lister a 2001 GSXR 1000," which statement was totally false, and was then known by the applicant to be false.

	b.  with intent to deceive, sign an official document, to wit:   a military registration and certificate of title of motor vehicle nontransferrable which showed his motorcycle as a 2002 model GSKR 1000 when it was actually a GSXR 750.

	c.  stealing monies of a value of more than $500.00, the property of the individual to which he sold the motorcycle.

	d.  stealing monies of a value of more than $500.00, the property of the Army Air Force Exchange Services.

3.  The charges were preferred after an investigation was conducted into the allegations made against the applicant.  In that investigation sworn statements were made that:

   a.  he was attempting to sell X-Box's and Playstation 3's in quantity.

   b.  he bragged about changing the decals on his motorcycle and selling it as a bigger and better motorcycle and beating a court-martial when caught.

   c.  he purchased 10 or more items in the Post Exchange (PX) with 75% off stickers on them and later returned the items for refund without receipts, which resulted in his being given over $5,000.00 in refunds over the amount he paid for the items.

4.  In statements made by the applicant he stated:
	a.  "To my knowledge I sold Mr. Lister a 2001 GSXR 1000."

	b.  In a second statement in response to the question "Did you sell a 2001 Suzuki GSX-R 750 to Mr. Jeffery LISTER?" he responded "No.  I sold him a GSX-R 1000."

	c.  In a third statement he stated "I would like to provide some additional information that is not included in my previous statement to the CID regarding the motorcycle I sold to Mr. Lister in Korea.  I do not feel I explained in full all the events that happened and I would like to do that at this time….  [the individual he purchased the motorcycle from] told me the motorcycle was a GSX-R-750, but had changed out the stickers to show it to be a GSX-R-1000 because it had the same characteristics and capabilities as a GSX-R-1000….  Later when it was time to leave Korea Mr. Lister was interested in the motorcycle and since it had all the characteristics and capabilities of a GSX-R-1000, I sold it to him as such for $7,200.  I know I should not have done that and since I know I was wrong I have decided I want to make this right with Mr. Lister.  I think a fair solution to the problem would be if I refunded the blue book difference between a GSX-R-750 and a GSX-R-1000 to Mr. Lister."

5.  On 4 April 2008, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.  In that request he acknowledged that he was guilty of one or more of the charges against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.

6.  His request was approved by the appropriate authority who directed the applicant be issued a UOTHC discharge.

7.  Accordingly, on 18 April 2008 he was discharged with a UOTHC discharge.  He completed 7 years, 10 months, and 14 days of creditable active service.

8.  On 20 October 2008, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the 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, 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.

10.  Army Regulation 635-200, paragraph 3-7a, states 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant presents himself as a model Soldier who only committed one offense, and that offense was simply a lapse of judgment in accepting the full amount of items in refunds when he purchased the items for lesser amounts on sale.

2.  The applicant's contention is not supported by the evidence of record.  The return of one item to the PX without a receipt and receiving more than one paid could be understood.  Repeatedly having the same situation occur resulting in an over-refund of in excess of $5,000.00 is not understandable as a lapse in judgment.  It is a demonstrated pattern.

3.  As for being innocent of the offenses of making an official false statement, signing an official document with intent to deceive, and stealing monies of a value of more than $500.00, the property of the individual to whom he sold the motorcycle, the applicant admitted illegally selling his GSXR-750 as a GSXR 1000 in a sworn statement.

4.  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)                                         AR20100020865



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ABCMR Record of Proceedings (cont)                                         AR20100020865



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