IN THE CASE OF:	  

		BOARD DATE:	        23 OCTOBER 2008

		DOCKET NUMBER:  AR20080005884 


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 a fully honorable discharge.

2.  The applicant states, in effect, that he knew at the time that the incident that led to his incarceration and subsequent discharge was a grave mistake and he has had to suffer with it ever since.  He goes on to state that since his discharge he has lived a model life working and supporting his family and being involved in community activities.  He also states that he credits his military training for his survival in the penal system and also states that he served well while in the Army.  He further states that he is in need of Veterans service and desires to have his discharge upgraded so that he can obtain those services.  

3.  The applicant provides a one-page statement explaining his application, a statement from his spouse, a letter from a psychologist and a copy of his DD Form 214. 

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’s records were not available for review by the Board; however, the evidence provided by the applicant is sufficient for the Board to conduct a fair and impartial review of this case.

3.  The applicant enlisted in Cleveland, Ohio on 28 June 1977 for a period of 3 years.  He completed his training as a tactical communications systems operator/mechanic and served 1 year, 10 months and 3 days of foreign service.  He reenlisted on 1 May 1980.

4.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available evidence.  However, his DD Form 214 reflects that he was stationed at Fort Riley, Kansas on 13 April 1982 when he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14 for misconduct – Conviction by civil court.

5.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.  

7.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

8.  Paragraph 3-7 also 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.
  
DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to show otherwise, it must be presumed that the applicant’s administrative separation was accomplished in accordance with the applicable laws and regulations in effect at the time with no procedural errors which would tend to jeopardize his rights.  

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
   
3.  The applicant’s contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his misconduct.  By the applicant’s own admission, he was sent to prison for his felony conviction, therefore his service simply does not rise to the level of a discharge under honorable conditions.
  
4.  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.




      _______ _ XXX______   ___
               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)                                         AR20080005884



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ABCMR Record of Proceedings (cont)                                         AR20080005884



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