IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110021962 


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 under honorable conditions 

2.  The applicant states he had already paid for his error by spending 6 months in the stockade, but his superiors discharged him without giving him a chance at rehabilitation.  He did not know the implications of the discharge until recently.

3.  The applicant provides in support of his application:

* service record documents that he identifies as "Case Summary" –this consists of one page bearing that title
* various pages relating trial and conviction by a special court-martial
* various pages from his separation package 

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 and entered active duty on 23 August 1983.  He completed training as an infantryman and progressed normally.  He was awarded an Army Achievement Medal in March 1985.

3.  He was transferred to Korea in June 1985, advanced to specialist four (pay grade E-4) in August 1985 and reenlisted for 5 years in March 1986.

4.  Following an investigation, the applicant was charged with black marketeering by purchasing and being unable to properly account for controlled (duty free) items, specifically, 11 video tape recorders worth in excess of $2700.

5.  On 13 January 1987 the applicant was convicted by a special court-martial authorized to impose a bad conduct discharge.  He pled guilty to 11 instances of two specifications each of violation of a lawful general regulation.  The approved sentence included reduction to pay grade E-2, forfeiture of $250 per month for 4 months and confinement for 6 months.  In accordance with a pretrial agreement, confinement in excess of 2 months was suspended for 6 months. 

6.  On 9 March 1987 the company commander recommended separation with a general discharge for commission of a serious offense.  

7.  The applicant acknowledged the notification and consulted with counsel who advised him of his rights.  The applicant indicated that he understood that he might encounter substantial prejudice in civilian life as a result of a less than fully honorable discharge and that he might be ineligible for some veterans' benefits under Federal and state laws.

8.  The chain of command recommended approval of the recommendation.  The separation authority approved the recommendation and directed a general discharge.

9.  On 22 April 1987 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12C.  He had 3 years 5 months and 9 days of creditable active duty service and 81 days of lost time.

10.  Army Regulation 635-200 (Personnel Separations) 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 commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation was impracticable or was 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 (chap 3, sec III). At that time, subparagraph 12C provided that when the sole basis for separation was a serious offense which resulted in a conviction by a competent court-martial that did not impose-a punitive discharge, the soldier's service could  not be characterized under other than honorable conditions unless approved by Headquarters Department of the Army (TAPC-PDT-SS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he had already paid for his error by spending 6 months in the stockade, but his superiors discharged him without giving him a chance at rehabilitation.  He did not know the implications of the discharge until recently.

2.  The applicant was not discharged for making a mistake he was discharged for committing a serious offense (11 times).  He did not serve 6 months in jail he only served 91 days.

3.  Considering that he still minimizes his offenses and exaggerates his punishment, the decision to discharge him because rehabilitation was impracticable or was unlikely to succeed appears quite reasonable.

4.  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.

5.  There is insufficient documentation or rationale submitted by the applicant or in the record to support the requested relief.

6.  In view of the foregoing there is no basis for granting the 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)                                         AR20110021962





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ABCMR Record of Proceedings (cont)                                         AR20110021962



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