IN THE CASE OF: BOARD DATE: 20 July 2010 DOCKET NUMBER: AR20090021652 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 1994 discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions. 2. The applicant states his discharge was inequitable because it was based on one isolated incident in 3 years of service. He states a Soldier might receive this kind of discharge if convicted by a civilian court or engaged in a pattern of misconduct involving many minor offenses which he contends he did not. 3. The applicant notes this discharge has had an adverse impact on his civilian life, that clemency is warranted because of his exemplary post-service achievements, and he now knows he could have reenlisted with a waiver. 4. The applicant provides no additional evidence in support of his request. CONSIDERATION OF EVIDENCE: 1. Records available to the Board indicate the applicant enlisted and entered active duty in the Regular Army on 12 July 1991. He successfully completed training, was assigned to a signal battalion in Germany, and was ultimately promoted to rank of specialist/E-4. 2. In January 1994 while still serving in Germany, the applicant was charged with conspiring with two other Soldiers to commit fraud by submitting a false claim against the government, making a false claim against the government in the amount of $1650.00, and making a false statement. The two other Soldiers involved were both privates first class who were the applicant's roommates. 3. Documents associated with the applicant's administrative separation were not in records available to the Board. However, on 28 April 1994 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. 4. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 2 years, 9 months, and 17 days of active Federal service. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. Chapter 10 provided that a member who committed 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 at any time after the charges were preferred. At that time, an under other than honorable conditions discharge was normally considered appropriate. 6. Army Regulation 635-200, paragraph 3-7b, provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 7. In November 2008, the applicant's request to the Army Discharge Review Board for an upgrade of his discharge was denied. DISCUSSION AND CONCLUSIONS: 1. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge. He has not shown error, injustice, or inequity for the relief he now requests. 2. The applicant's argument that his discharge was based on an isolated incident is acknowledged. However, the severity of the misconduct, the involvement of Soldier's junior to him, and the fact he would have voluntarily requested discharge in order to avoid being court-martialed, all support a conclusion his discharge was appropriate and warranted. 3. Although the applicant's separation action is not available to the Board, the applicant would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him. In the absence of evidence to the contrary, regularity is presumed and the applicant provided no evidence indicating his administrative separation was not accomplished in compliance with applicable regulatory guidance or that there were any procedural errors that jeopardized his rights. 4. While the applicant's post-service accomplishment may be noteworthy, they are not supported by any evidence of record and would likely not be sufficiently mitigating to warrant the relief requested. 5. 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. 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) AR20090021652 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090021652 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1