IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007279 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was discharged for misconduct but never received due process, a court-martial, or any other type of trial.  He was serving in an E-6 position while ranked as an E-3 and conducted his military affairs on an equal par with senior noncommissioned officers (NCOs).  He was ill equipped to manage finances and had his commander offered counseling, his military career could have been repaired.  Since his discharge, he has excelled in his career in that he is a U.S. Coast Guard licensed Merchant Marine Captain, Chief Engineer, Master of Towing Vessels, and Designated Duty Engineer Unlimited.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 January 1994
* two Merchant Marine licenses

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.  He enlisted in the Regular Army on 18 June 1991.

3.  On 17 June 1993, the Army and Air Force Exchange Service notified his commander that he had the following three checks returned due to insufficient funds:

* 17 May 1993 - $40.00
* 2 June 1993 - $14.75
* 4 June 1993 - $3.25

4.  On 13 September 1993, the Yongsan Law Center, Korea, was notified the Republic of Korea Government decided to exercise jurisdiction over the applicant and another Soldier for special robbery.  They were accused of assaulting a Korean taxi driver and robbing him of the equivalent of $100.00.  The final disposition of these charges is not in his military personnel records jacket.

5.  On 4 January 1994, he received a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 
40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings against him.  

6.  On 6 January 1994, his commander notified him that action was being initiated to discharge him for misconduct, commission of a serious offense under the provisions of paragraph 14-12c, chapter 14 of Army Regulation 635-200 with a general discharge.  The reasons for the proposed action were his:

* stealing foreign currency of a value of about $100.00 by means of force and violence from a Korean National
* writing wrongfully and unlawfully with intent to defraud three bad checks
* assaulting a Korean National

7.  The commander advised him of his rights to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

8.  On 11 January 1994, after having consulted with counsel, he submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14, Army Regulation 635-200 for commission of a serious offense.  He requested representation by military counsel and he indicated he was submitting statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

9.  In his statement he also indicated he waived consideration of his case by an administrative separation board and a personal appearance before such a board if his characterization of service was no less favorable than honorable.

10.  He submitted six statements from NCOs in his unit.  They attested to his integrity and dedication to the service.  They found him to be responsible and trustworthy.  They felt he could still be a contributing member to his unit and to the Army.  All six NCOs recommended he be retained in the service.

11.  On 19 January 1994, his commander recommended he be separated prior to the expiration of his term of service and that he be given a general discharge.   His specific reasons for recommending discharge were his:

* stealing foreign currency of a value of about $100.00 by means of force and violence from a Korean National
* writing wrongfully and unlawfully with intent to defraud three bad checks
* assaulting a Korean National

12.  On 19 January 1994, the appropriate authority waived the requirement for a rehabilitative transfer and approved the recommendation for discharge under the provisions of paragraph 14-12c, chapter 14 of Army Regulation 635-200, due to commission of a serious offense with a general discharge under honorable conditions.  

13.  On 31 January 1994, he was discharged by reason of misconduct.  He completed 2 years, 7 months, and 13 days of active service that was characterized as under honorable conditions (general).

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

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 14 dealt with separation for various types of misconduct.  Paragraph 14-12c provided for the separation of a Soldier by reason of commission of a serious offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

   c.  When the reason for separation required the notification procedure, the commander notified the Soldier in writing that his or her separation had been recommended.  The commander cited specific allegations on which the proposed action was based.  The Soldier was further advised of the following rights:

* to consult with consulting counsel within a reasonable time (not less 	than 3 duty days) – Soldiers could also consult with civilian counsel 	retained at their own expense
* to submit statements in his or her own behalf
* to obtain copies of documents that were sent to the separation 	authority supporting the proposed separation
* to a hearing before an administrative separation board if he or she had 
	6 or more years of total active and Reserve service on the date of 	initiation of recommendation for separation





DISCUSSION AND CONCLUSIONS:

1.  He contends proper counseling on finances could have rehabilitated his career.  However, he was discharged based on the commission of a serious offense that included larceny by force and violence and assault on a Korean National.  Therefore, counseling on finances would not have likely had an effect on these types of charges.

2.  In his statement, he waived a board and personal hearing if his characterization of service was no less than favorable than honorable.  However, he did not have 6 or more years of total active and Reserve service on the date his commander initiated a recommendation his separation.  Therefore, he was not entitled to an administrative separation board.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Therefore, he was afforded due process.

4.  It is clear his previous service and the statements from his NCOs were considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.  His accomplishments since his discharge were noted.  

5.  The seriousness of the charges against him in a foreign country clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the above, there is an insufficient basis to upgrade 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)                                         AR20120007279



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ABCMR Record of Proceedings (cont)                                         AR20120007279



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