IN THE CASE OF:
BOARD DATE: 8 MAY 2008
DOCKET NUMBER: AR20080002936
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 Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to honorable conditions.
2. The applicant states that although he made a mistake in the last 6 months of his enlistment, he believes that his honorable service preceding that incident should be considered.
3. The applicant provides a statement in support of his request. In that statement he tells how he has been successful in business, and how he has successfully raised his children.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 3 February 1976. He was awarded the military occupational specialty of radio teletype operator and was promoted to pay grade E-4.
3. On 6 May 1978, the applicant was confined by civil law enforcement authorities.
4. On 5 December 1978, the applicant pleaded and was found guilty of felonious larceny of an automobile and robbery with a dangerous weapon. He was sentenced to confinement for not less than 7 years and not more than 10 years.
5. On 7 March 1979, the applicants commander notified him of his intent to recommend him for discharge due to misconduct and of his rights in conjunction with that recommendation. The applicant was informed that he could receive an UOTHC discharge if the recommendation was approved. The applicant did not invoke any of the rights he was offered.
6. The recommendation was approved by the appropriate authority and the applicant was discharged UOTHC on 9 July 1979. He had 2 years and 7 months of creditable active service.
7. Army Regulation 635-200, paragraph 14-5, provides the authority to discharge an enlisted Soldier when initially convicted by civil authorities, when a punitive discharge would have been authorized for the same or a closely related offense under the Manual for Court-Martial, and the sentence by the civil authorities includes confinement for 6 months or more. When discharge is approved under this paragraph, an UOTHC discharge is normally considered appropriate.
8. On 3 August 1981, the Army Discharge Review Board (ADRB) denied the applicants request for an upgrade to his UOTHC discharge.
DISCUSSION AND CONCLUSIONS:
1. While the applicant had 2 years and 7 months of unblemished active service, he pleaded and was found guilty of felonious larceny of an automobile and robbery with a dangerous weapon. These were serious acts of misconduct which certainly outweighed the applicants preceding service record.
2. While it is commendable that the applicant became successful in business after his discharge and he raised his children well, these accomplishments are not sufficient to warrant upgrading a properly issued discharge.
3. As such, there is no basis for granting the applicants 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) AR20080002936
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