IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130002127 


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 honorable.

2.  The applicant states he had to request discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, because Army investigators were trying to make him out to be a spy.  They tried to break him down; he'd just had enough and asked for a "chapter 10 discharge."  He didn't want to fight back because he became sick and tired from the accusations.  He was a very good Soldier and American citizen.  His parents, who were in Poland, were proud of him.  Now he wants to change the characterization of his service and get his good name back, mostly for his children.

3.  The applicant provides:

* Honorable Discharge Certificate, dated 30 October 1982
* 1st endorsement from the Commander, Defense Language Institute, Foreign Language Center, Troop Command, Presidio of Monterey, CA, dated 1 August 1984, subject:  Letter of Appreciation
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 April 1992
 
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 previously served 4 years, 10 months, and 25 days of active service in the Regular Army.  On 26 July 1983, he enlisted in the Regular Army.  His military occupational specialty is shown as 97E (Interrogator).  He immediately reenlisted on 25 March 1986.

3.  A Rights Warning Procedure/Waiver Certificate, dated 26 July 1991, indicates the applicant was suspected of violation of Army Regulation 381-12 (Subversion and Espionage Directed Against the Army) (now titled Threat Awareness and Reporting Program) and/or espionage statutes.  The form shows the investigator was with the U.S. Army Military Intelligence and the applicant waived his right to an attorney.

4.  The DA Form 4126-R (Bar to Reenlistment Certificate), dated 20 November 1991, shows his commander stated:

Recommend that you be barred from reenlistment based on your previous DWI [driving while intoxicated] and your violation of Army Regulation 
381-12, Subversion and Espionage Directed Against the U.S. Army dated 81 JUL 01, paragraphs eight and nine.  You failed to report personal contact with persons you knew were from geographical areas in Appendix B, AR 380-12 [Foreign Disclosure and Contacts with Foreign Representatives].

5.  On 25 November 1991, the applicant submitted a rebuttal to the recommended bar to reenlistment.

	a.  He stated he had not been convicted of any wrongdoing and was only under investigation at the time.  The investigation should not be used as the basis for barring him from reenlistment when it had not been established that he had violated any law or regulation.

	b.  He stated his DWI occurred in July 1990 and he felt it unfair to bar him from reenlistment for a DWI that occurred 16 months ago.

6.  On 16 December 1991, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for driving while intoxicated at Anchorage, AK, on 23 August 1990.  The applicant elected not to make a statement or submit matters in rebuttal.  The imposing authority directed filing the GOMOR in the applicant's Official Military Personnel File (currently known as the Army Military Human Resource Record).

7.  The bar to reenlistment was approved on 15 January 1992.

8.  A memorandum, dated 12 February 1992, notified the applicant an investigation pursuant to Article 32b (Investigation) of the Uniform Code of Military Justice (UCMJ) would be held on 20 February 1992 to investigate the facts and circumstances concerning the charges preferred against him.  The charges were Article 92 (Failure to Obey an Order or Regulation), two specifications of Article 107 (False Official Statements), and Article 134 (General Article).

9.  A DD Form 457 (Investigating Officer's Report), dated 24 February 1992, indicates the date of the applicant's charges was 10 February 1992.  However, the charge sheet and the specific charges are not available for the Board to review.  The investigating officer indicated the charges and specifications were in proper form.  He recommended dismissal of charge II, violation of Article 107 of the UCMJ.  As for the remaining charges, reasonable grounds existed that the accused committed the alleged offenses.

10.  On 6 April 1992, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

11.  The applicant's separation package was not available for the Board's review.

12.  On 7 April 1992, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  He completed 8 years, 8 months, and 12 days of net active service that was characterized as under other than honorable conditions.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

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

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally given to an individual who was discharged for the good of the service.

	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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  It appears the circumstances surrounding the applicant's discharge concerned violations of Articles 92, 107, and 134 of the UCMJ as well as possible espionage statutes.  However,  because of the unavailability of his separation package, the exact charges that were preferred against him are unknown.

2.  In order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have:

* been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial
* admitted he was guilty of the offenses he was charged with
* acknowledged that he could receive a discharge under other than honorable conditions

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In view of the above, there is an insufficient basis to upgrade the characterization of the applicant's discharge to honorable or general under honorable conditions.

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)                                         AR20130002127



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ABCMR Record of Proceedings (cont)                                         AR20130002127



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