RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070006801 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Laverne M. Douglas

Member

Mr. Jerome L. Pionk

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he used poor judgment that resulted in his discharge.  He was tried and received a general discharge in a case of involuntary manslaughter when a Korean National died from injuries received in a car/pedestrian accident at Camp Humphreys, Korea.  

3.  The applicant further states that he and his wife completed the necessary course of study to became foster parents.  Upon renewal of their three-year license, a newly-mandated fingerprint check resulted in license forfeiture.  His military discharge status now prohibits him from serving as a foster parent.  He has paid his dues and cannot change what has happened.  

4.  The applicant concludes that he and his wife can make a positive difference in the lives of children in need of a home; they have two girls of their own and are active in the community and the First Baptist Church.  

5.  The applicant provides no additional documentation in support of this application.

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, and 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 27 April 1982.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 95B (Military Policeman).



3.  On 23 October 1984, the applicant was convicted, pursuant to his pleas, by a general court-martial, of operating a vehicle while drunk that caused the vehicle to strike and injure a civilian and unlawfully killing a civilian by striking him with the vehicle.  His sentence consisted of a forfeiture of $400.00 per month for one year, confinement at hard labor for one year, and a bad conduct discharge (BCD).  The applicant served his confinement from 23 October 1984 though
5 August 1985, at which time the general court-martial convening authority remitted the BCD.

4.  The applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  The reason cited by the commander was the serious nature of and the circumstances surrounding the applicant's court-martial offenses reflected little potential for productive advancement or retention in the military.

5.  On 29 July 1985, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined counsel, waived his right to be heard by a board of officers, and declined to submit a statement on his own behalf.

6.  On 2 August 1985, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 6 August 1985, the applicant was separated from the service after completing 2 years, 5 months, and 23 days of creditable active service with 287 days of lost time due to confinement.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  


8.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military discharge status prohibits him from renewing his license as a foster parent.  He further contends that he and his wife are active in his community and church.  However, good post-service conduct alone is not a basis for upgrading a discharge and is not sufficient to mitigate his indiscipline in the Regular Army.  Additionally, the Board does not grant relief solely for the purpose of obtaining licenses.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

3.  The applicant's records show that he received a general court-martial for operating a vehicle while drunk and unlawfully killing a civilian by striking him with the vehicle.  He had completed 2 years, 5 months, and 23 days of creditable active service before his separation with a total of 287 lost days due to confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  ___LMD_  ___JLP _  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.




____William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20070006801
SUFFIX

RECON

DATE BOARDED
25 SEPTEMBER 2007
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.

3.

4.

5.

6.