IN THE CASE OF:	  

		BOARD DATE:	 26 July 2012

		DOCKET NUMBER:  AR20120002229 


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

2.  He states he was wrongfully accused and he has had to live with this throughout his career.  

3.  He provides no additional documents.  

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 initially enlisted in the Regular Army on 23 June 1981.  Upon completion of initial entry training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was honorably released from active duty on 19 June 1986, due to relief from active duty, and transferred to Headquarters and Headquarters Detachment, 1st Brigade, One Station Unit Training, Alexandria, VA.  

3.  He enlisted in the Regular Army again on 12 November 1987.  He completed foreign service in Saudi Arabia, Korea (two tours), and Germany.  

4.  On 27 July 1993, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for the following offenses:

* falsely pretending to be authorized to charge telephone calls to the account of another Soldier 
* wrongfully and unlawfully obtaining, from MCI Telecommunications, telephone services of a value of about $1,277.93
* wrongfully and unlawfully making under lawful oath a false statement 

5.  On 10 August 1993, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  He was advised of his rights.

6.  On 12 August 1993, he acknowledged notification of the separation action, consulted with legal counsel, and voluntarily waived consideration of his case by an administrative separation board contingent upon receiving no less than a general discharge.  On 13 August 1993, submitted a second request for a conditional waiver to his commander.  He stated he had served in the U.S. Army 12 years and he listed his duty assignments during this period including his overseas service in Saudi Arabia in support of Operation Desert Storm, awards, and training courses.

7.  On 15 September 1993, he submitted a request for a conditional waiver to his battalion commander.  He voluntarily waived consideration of his case by an administrative separation board.  He stated this waiver superseded his request for an administrative board initiated on 12 August 1993.  

8.  On 20 September 1993, the separation authority approved the separation action and directed the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense with a UOTHC discharge.  

9.  On 30 September 1993, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 5 years, 10 months, and 19 days active military service during the period under review and 4 years, 11 months, and 27 years prior active service.  

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge 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.  

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 contends he was wrongfully accused.  However, his service record is void of evidence and he has not provided any evidence which supports his contention.

2.  The applicant completed prior honorable service.  However, his service record shows he received an Article 15 for falsely pretending to be authorized to charge telephone calls to the account of another Soldier, wrongfully and unlawfully obtaining telephone services from MCI Telecommunications of a value of about $1,277.93, and wrongfully and unlawfully making a false statement under oath.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  A UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or an honorable discharge.  

5.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his UOTHC 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)                                         AR20120002229



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ABCMR Record of Proceedings (cont)                                         AR20120002229



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