BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140006130 


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 to general under honorable conditions.

2.  The applicant states:

* he served honorably in the Navy during Vietnam
* he requests the upgrade because, in effect, he was inadvertently caught up in his wife's blackmarketing activities while stationed in Korea  
* his wife has since left him, requiring him to raise their three children alone  

3.  The applicant provides a self-authored statement, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in the Regular Army on 9 January 1979 after a previous period of service in the United States Navy.  He completed basic combat and advanced individual training, and was awarded the military occupational specialty 63B (Light-Wheel Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty with the Army was staff sergeant/E-6.

3.  Available records show the applicant was convicted, along with his wife and a Korean-American United States Army Soldier, by a Republic of Korea civil court on 7 November 1988 for unlawfully attempting to evade customs and bringing in goods valued at $750,000 via Military Airlift Command (MAC) aircraft.  (While the applicant was reduced in rank and separated, the other Soldier, who was assigned to a different unit, was retained.)

4.  Available records indicate the applicant, prior to his conviction in a Republic of Korea civil court, had no previous disciplinary actions.

5.  On 27 January 1989, the applicant was notified a board would be convened to consider an administrative reduction as a result of his civilian conviction.  The applicant was told he had the right to seek counsel, arrange witnesses to speak in his behalf, and personally appear before the board.  The applicant declined to appear before the board.  The board was convened on 8 March 1989, and based upon consideration of the evidence recommended a reduction in grade to private, E-1.  On 20 March 1989, the approving authority approved the board's recommendation and the applicant declined to appeal.  He was reduced accordingly.

6.  On 28 March 1989, the applicant was notified he was being considered for elimination under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, section II, paragraph 14-9.  He was informed of his right to counsel and to request an administrative board.  

7.  On 28 March 1989, the applicant waived his right to seek and be represented by counsel.  He waived his right to an administrative board and did not submit any statements or offer any witnesses to speak in his behalf.  

8.  On 2 May 1989, the approving authority directed the applicant be issued an other than honorable discharge.  On 18 May 1989, the applicant was discharged accordingly.

9.  His DD Form 214 shows he completed 10 years, 4 months and 10 days of active military service during the period under review.  His DD Form 214 shows in:

* item 24 (Character of Service): "Under Other than Honorable Conditions"
* item 25 (Separation Authority): "AR 635-200, Chapter 14 SEC II"
* item 28 (Narrative Reason for Separation): "Civilian Conviction"

10.  The applicant provides a one-page, self-authored statement in which he states, in effect:

* he enlisted in the Navy from 1969 to 1972 and served honorably in Vietnam
* he joined the Army in 1979 and worked hard as a motor pool sergeant; spending more time on the job than he did at home
* he was not aware of his wife's blackmarketing activities and, when she suggested they take a trip to Japan, he went along
* his wife met some people in Japan and told him the bags she had were gifts for family and friends.  Because they were heavy and she was pregnant, he chose to carry to bags for her
* it was only after he was called back to the baggage room that he realized his wife was smuggling goods to sell on the blackmarket
* his wife was put in a Korean jail, he was discharged from the Army, reduced in rank, and received 5 years probation from the Korean court
* he spent 15 more years with his wife, then she left him.  He took care of their 3 children, but has not been able to keep a stable relationship or job since
* he has been having nightmares related to his time in Vietnam

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  
   
   b.  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. 
   c.  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, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an honorable discharge or general discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant's record reflects no history of indiscipline, apart from the civil conviction for blackmarketing.  This offense, however, is of a very serious nature and clearly diminished the overall quality of his service below that meriting a fully honorable or general discharge.  Accordingly, there is no basis upon which to grant 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)                                         AR20140007051



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ABCMR Record of Proceedings (cont)                                         AR20140006130



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