IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080000679 


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 that his discharge under other than honorable conditions be upgraded to general under honorable conditions. 

2.  The applicant states that there was no error.  He is just requesting an upgrade.  The applicant contends that he had a drug abuse problem and the Army failed to help him to overcome it.  The applicant admits that he was in an altercation with his roommate in November 1982 and received nonjudicial punishment (NJP) for his misconduct.  He further admits to having had a drug abuse problem which led to his further misconduct and civilian conviction.   He states that it was fortuitous that his civilian attorney was able to recognize his drug abuse problem and to procure his transfer to a drug detoxification inpatient program.  He also states that his civilian court mandated that his sentence be as a commuted youthful offender and parole qualifying, meaning that he was eligible for reintegration back into the community after serving only one day of confinement.  

3.  The applicant further states that he has done his best to make reparative actions and to accept responsibility for all of his errors in judgment.  He has written letters of apology to all of the people he had harmed.  He has paid all assigned restitutions in full.  Moreover, he remains committed to a long-term maintenance plan of sobriety.  He has obtained a Bachelor of Science Degree in Chemical Dependency Counseling and facilitates 12-step group meetings.  The applicant also stated that he has secured employment in the food service industry and accepted the position as an International Division Manager employed to open concept stores throughout the Gulf countries of Saudi Arabia, Bahrain, and Kuwait.  During his 3 years in Kuwait, he was repeatedly called upon to provide catering services to the troops stationed at Camp Doha.  He derived great pleasure in being able to make a significant contribution in support of the military and only wished that he could enlist and continue to make meaningful contributions.  

4.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214); Madison University Bachelor of Science Diploma and transcript; and his Personnel Qualification Record, Part II (DA Form 2-1).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The counsel identified on the applicant’s application has not provided any statement or evidence.  

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.  On 21 October 1981, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 05B (Radio Teletype Operator).

3.  On 4 May 1982, the applicant was assigned to Fort Bragg, North Carolina.

4.  On 4 November 1982, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice, for biting another Soldier, for assaulting another Soldier with a knife, and for possession of marijuana.  The punishment included reduction to pay grade E-1 (suspended), forfeiture of $286.00 pay per month for 1 month, and correctional custody for 21 days. 

5.  On 16 December 1982, the applicant was apprehended by the Cumberland County Police for robbery.  On 22 December 1982, he was released on bail.  He was absent without leave (AWOL) from 22 December 1982 until his return to military control on 28 December 1982.  

6.  On 4 January 1983, the applicant was again apprehended and transported to the Cumberland County Jail for two counts of first degree burglary and robbery with a dangerous weapon.

7.  On 15 February 1983, the suspended reduction in grade imposed by NJP on 4 November 1982 was vacated, reducing the applicant to the pay grade of E-1.

8.  On 8 March 1983 a medical examination found him to be qualified for separation with a physical profile of 111111.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  
 
9.  On 24 October 1983, the applicant’s commander advised him of his intention to separate him under the provisions of Army Regulation 635-200, chapter 14 for conviction by civilian authorities.  

10.  On or about 14 November 1983, the applicant consulted with counsel concerning his rights.  He requested representation by military counsel and also retained civilian counsel.  He desired to present written statements and to have a board of officers hear his case. 

11.  On 7 December 1983, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, due to civilian conviction.   The commander stated that the applicant had been convicted by civilian authorities of first degree burglary and two counts of common law robbery.  He was sentenced to 14 years in prison.  An appeal was pending.  The commander further stated that the applicant’s performance of duty had been unsatisfactory and that counseling on two different occasions failed to show any progress.  

12.  On 16 February 1984, a board of officers convened to consider the applicant's elimination under the provisions of Army Regulation 635-200, chapter 14, for conviction by civil authorities.  The applicant was represented by military counsel.  The board recommended that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  
13.  On 23 March 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

14.  Accordingly, on 2 May 1984, the applicant was discharged under other than honorable conditions.  He had completed 1 year, 2 months, and 2 days of creditable active service, and had approximately 495 days of lost time due to AWOL and confinement.

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

16.  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, and 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.  An under other than honorable conditions discharge is normally appropriate for a member discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The record clearly shows that the applicant’s performance of duty was unsatisfactory and that he was convicted by civilian authorities.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant’s scholastic accomplishments and reported post-service accomplishments do not sufficiently mitigate his acts of indiscipline during his military service.   



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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080000679



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