IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006225 


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 discharge be upgraded.

2.  The applicant states, in effect, that he was discharged 26 years ago for complications in civilian court.  He contends his military record was perfect. 

3.  The applicant did not provide additional documentary evidence 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, 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 19 May 1980, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 1 July 1980, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 63B (Power Generator Wheel Vehicle Mechanic).  

3.  On 7 May 1982, the applicant was arrested by civil authorities and confined on a charge of common law robbery.  He pled guilty to common law robbery in a plea bargain which did not allow him to appeal his conviction.  He received a 
3 year sentence.

4.  On 30 July 1982, the commander notified the applicant by mail of initiation of separation action under the provisions of chapter 14-5 of Army Regulation
635-200 (Enlisted Personnel Separations) by reason of a civil conviction, with an under other than honorable conditions discharge.  The applicant acknowledged receipt of notification; he indicated he understood the ramifications of his recommended type of discharge, waived his right to appear  before an administrative separation board, and did not submit a statement in his own behalf. 

5.  On 1 November 1982, the separation authority directed the applicant be discharged with an under other than honorable conditions discharge.

6.  On 12 November 1982, the applicant was discharged by reason of a civil conviction.  He completed 1 year, 10 months, and 6 days of active Federal service and had 186 days of lost time due to civil confinement. 

7.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-5 stipulates, in pertinent part, that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty.  A Soldier will be considered and processed for discharge even though he or she has filed an appeal or has stated his or her intention to do so.  However, if an appeal has been made, execution of the approved discharge will be withheld until formal action has been taken or until the Soldier's current term of service, as adjusted, expires.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200, by reason of a civil conviction.  There was no evidence of arbitrary or capricious actions by the command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant indicated that he fully understood the ramifications of his type of discharge and was provided the benefit of military counsel and representation at an administrative separation board, which he voluntarily waived.

2.  Although the applicant contends that his military record was perfect, at the time of his discharge, he had already accumulated 186 days of lost time due to civil confinement and was sentenced to 3 years imprisonment.  

3.  The applicant served a relatively short period of time and provided no evidence in mitigation of his serious conviction for common law robbery.  Even though the applicant was discharged over 26 years ago as he contends, his civil conviction and subsequent imprisonment marred an otherwise exemplary military record.  Upgrades of discharges are usually not based solely on the elapse of time, and the applicant has not provided any extenuating or mitigating evidence which would provide a basis for the upgrade of his discharge.

4.  Based on the above evidence, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief he has requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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)                                         AR20080006225





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ABCMR Record of Proceedings (cont)                                         AR20080006225



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