IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110017885 


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.

2.  He states:

* he was convicted by a Korean civil court on 11 July 1975
* the conviction was for robbery, which was not the truth
* his conduct and efficiency while serving on active duty were excellent and satisfactory
* he is including character references from people who knew and worked with him

3.  He provides numerous documents from his military records, his U.S. passport indicating his name change, and character references.

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 was inducted into the Army of the United States on 3 November 1969 and he was released from military control on 27 January 1970 by reason of voidance of enlistment.

3.  The applicant enlisted in the Regular Army on 16 February 1973 for a period of 3 years.  Upon completion of initial entry training, he was awarded military occupational specialty 76W (Petroleum Supply Specialist).  He was assigned to Korea on 12 July 1973.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two separate occasions for failing to go to his appointed place of duty (three times), failing to obey a lawful regulation, and violating a lawful regulation.

5.  On 20 December 1974, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation 
635-206 (Personnel Separations – Discharge – Misconduct) by reason of misconduct for conviction for robbery by a Republic of Korea Civil Court on 19 July 1974.  He was advised of his rights.  He consulted with legal counsel, requested consideration and personal appearance of his case by a board of officers, and he did not submit statements in his own behalf.

6.  On 22 January 1975, he underwent a psychiatric evaluation.  The evaluation indicated he was mentally able to understand the nature of board proceedings and to testify in his own behalf; he was mentally able to distinguish right from wrong and to adhere to the right; he met the medical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3; he was mentally responsible; and he was not likely to profit from further rehabilitative efforts.  The applicant was cleared for administrative action deemed appropriate by command, to include separation under Army Regulation 635-206.

7.  His service record includes a Trial Observer Report on Appeal, dated 22 January 1975.

	a.  The applicant and two other Soldiers (defendants) submitted appeals on 3 and 10 December 1974 in Seoul, Korea.  They were charged with special larceny and aggravated robbery resulting in injuries in violation of Article 331(1) and Article 337, Republic of Korea Criminal Code (cited on report).

	b.  The court found the defendants not guilty of special larceny, but guilty of aggravated robbery resulting in injuries.  They were sentenced to imprisonment for 3 1/2 years.

	c.  The defendants appealed their convictions to the Seoul High Court.  This court dismissed the defendants' appeal and affirmed the judgment of the lower court.

8.  On 4 February 1975, the unit commander recommended the applicant's discharge prior to his expiration term of service under the provisions of Army Regulation 635-206, section VI, due to his conviction by a Republic of Korea Civil Court for robbery.  The unit commander stated the applicant was convicted and sentenced to 3 1/2 years of imprisonment on 19 July 1974 and he was on international hold pending appellate action for this offense.  The unit commander also stated the applicant's performance of duty under different officers and noncommissioned officers had been satisfactory and his conduct and efficiency ratings had been "excellent/excellent" for the period 16 February to 20 April 1973, "excellent/excellent" for the period 21 April to 19 July 1973, and "unsatisfactory/satisfactory" for the period 19 July 1973 to the present.

9.  A board of officers convened on 12 May 1975 and recommended the applicant's discharge from the service because of his conviction by civil court with issuance of an Undesirable Discharge Certificate.

10.  On 27 June 1975, the recommendation for the applicant's discharge for civil confinement was approved under the provisions of Army Regulation 635-206, section VI, with issuance of an undesirable discharge.  It further indicated the applicant's discharge would not be executed until final action had been taken on his appeal and he was returned to the continental United States.

11.  He was discharged on 16 November 1977.  He completed 1 year, 8 months, and 16 days creditable active service with approximately 915 days of lost time.

12.  He provided two character references from a friend and a pastor who stated the applicant has dedicated his life to reaching out to those living in desperate situations in the most impoverished of inner city neighborhoods.  Also he is an inspiration to others and believes in his mission and potential for greater success for his ministry in Philadelphia.

13.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

14.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  This regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action taken against them which is tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was found guilty by a Republic of Korea Civil Court on 19 July 1974 of aggravated robbery resulting in injuries.  He was sentenced to 3 1/2 years of confinement.

2.  He contends the conviction was for robbery, which was not the truth.  However, he has not provided any evidence to support his claim.

3.  His service record shows he received two Article 15's for various offenses.

4.  It appears the chain of command determined the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as undesirable.

5.  The character references provided by the applicant were considered.  However, these documents alone are not sufficiently mitigating to warrant an upgrade of his discharge.

6.  The evidence of record does not show the actions taken in this case were in error or unjust.  Therefore, 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 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)                                         AR20110017885



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ABCMR Record of Proceedings (cont)                                         AR20110017885



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