IN THE CASE OF: BOARD DATE: 3 November 2015 DOCKET NUMBER: AR20150005580 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 discharge to an honorable discharge. 2. The applicant states he made a mistake in his younger years. He is now older and feels he is still being punished for the mistakes of his youth. He changed his life around and is doing a good job. He retired from his civilian job and has been trying to get his discharge upgraded for some time now. 3. The applicant provides: * South Carolina Law Enforcement Division Criminal Records Check * letter of retirement * two (2) character reference letters * civilian arrest record 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 was born in April 1949. He enlisted in the Regular Army (RA) at 25 years of age on 1 August 1974 and he held military occupational specialty 92C (Field Artillery Surveyor). 3. He served through two reenlistments on 5 April 1977 and on 26 March 1982 in a variety of assignments. He had foreign service in Germany from December 1978 to December 1980 and in Korea from March 1983 to November 1983. He attained the rank/grade of staff sergeant (SSG)/E-6. 4. In September 1983 while stationed in Korea, he was investigated by the U.S. Army Criminal Investigation Command for involvement in black-marketing of tax free merchandise and the illegal transfer of tax free merchandise to a Korean national. The investigation found sufficient evidence to support this finding. 5. On 18 October 1983, court-martial charges were preferred against the applicant for one specification of violating a lawful general regulation by purchasing goods from the post exchange for illegal transfer on divers occasions and one specification of violating a general regulation by failing to present valid and bona fide information or documentation showing the continued possession or lawful disposition of controlled items acquired or brought into Korea duty-free, upon request from military authorities. 6. His chain of command recommended a special court-martial empowered to adjudge a bad conduct discharge. 7. On 1 November 1983, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for offenses punishable under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. 8. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service * he elected to submit a statement 9. In his statement, the applicant stated: * he wanted to resign so he would not have to face the court-martial * he asked the court-martial convening authority to grant him a general discharge * he indicated he performed well, served for 10 years, and received good evaluation reports * his father was ill and he recently learned that his father was readmitted to the hospital with a kidney problem * he contributed financially to the health and welfare of his father but his salary was not enough to support his own family (wife and three young children) and his parents * he confessed to the investigating officer and offered his full assistance throughout the investigation * he acknowledged his actions were improper and inexcusable * he was sorry for his actions and he knew there was no excuse * a general discharge would make it easier for him to transition back to his family and society * a general discharge would allow him to retain his rank and afford him the opportunity to relocate his family from Texas to his home of record in South Carolina at government expense 10. His immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. 11. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade. On 23 November 1983, the applicant was discharged accordingly. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. This form shows he completed 9 years, 3 months, and 23 days of creditable active service. He was awarded or authorized the: * Army Commendation Medal (2nd Award) * Good Conduct Medal (3rd Award) * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar 13. On 27 February 1987, the Army Discharge Review Board found his discharge proper and equitable and denied his petition for an upgrade of his discharge. 14. He provides: a. a South Carolina criminal records check showing prior arrest records in 1997 and in 2003 for misdemeanor crimes. b. a letter, dated 20 March 2015, from his civilian employer attesting to the fact the applicant was an employee of Teknor Apex Company for over 18 years and recently retired. He had a satisfactory record of employment. c. a statement, dated 19 March 2015, from his previous supervisor who opines the applicant was a reliable employee who could be counted on to get things done. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that 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. c. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. The applicant's satisfactory post-service employment is noted; however, this is not sufficiently mitigating for granting the requested relief. The applicant was 25 years of age at the time of his enlistment and nearly 33 years of age at the time of his offenses. He was a SSG/E-6 when he admitted to violating Army regulations by participating in black-market activities for his personal financial advantage. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age. 3. Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. His service does not meet the criteria for an honorable or general 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) AR20150005580 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005580 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1