IN THE CASE OF:	

		BOARD DATE:	 26 August 2008 

		DOCKET NUMBER:  AR20080008978 


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 to an honorable discharge. 

2.  The applicant states that his discharge should be upgraded because it is adversely affecting his life and ability to find a decent job after 20 years.  He states that since the Public Information Act went into affect, his discharge has adversely affected his life to the extreme.  He is also trying to expunge his charges from the civilian court.

3.  The applicant does not provide any additional documentation. 

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 military personnel record shows he enlisted in the Regular Army on 30 October 1986.  He completed the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).

3.  His first assignment was with Company A, 37th Engineer Battalion, Fort Devens, Massachusetts.

4.  On 30 October 1987, the applicant was tried and convicted in the Court of Common Pleas of Washington County, Pennsylvania for resisting arrest or other law enforcement, and arson.  The applicant pled guilty to the charges of resisting arrest or other law enforcement, and arson.  His punishment consisted of paying the cost of prosecution and being confined in the Washington County Jail for a period of 11 1/2 to 23 months for each charge with credit for time served.  

5.  The court granted the District Attorney's motion to not process the charges of escape, unsworn falsification to authorities, public drunkenness, disorderly conduct, and riot.

6.  On 11 February 1988, the applicant's commander notified him of his intent to recommend his separation under the provisions of Army Regulation 635-200 (Personnel Separation) for conviction by civil court on the charges of resisting arrest and arson.  On 19 February 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense, under the provision of Army Regulation 635-200, Chapter 14, of the rights available to him, and the effects of any action taken by him in waiving his rights.  He stated he understood that he was entitled to have his case considered by an administrative separation board. The applicant submitted no statement on his own behalf, waived an administrative separation board, and waived representation by counsel.

7.  He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions or under other than honorable conditions was issued.  He also acknowledged that he understood that he may make application to the Army Discharge Review Board or the Army Board of Correction of Military Records to upgrade his discharge.  However, he realized that an act or consideration by either board does not imply that his discharge would be upgraded.

8.  On 3 March 1988, the applicant’s commander forwarded the recommendation for separation to the approving authority.  On 11 March 1988, the approving authority approved the recommendation for separation and directed that the 
applicant be discharged under the provisions of Army Regulation 635-200, chapter 14 for conviction by civil authorities, with an under other than honorable conditions discharge.

9.  On 21 March 1988, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 5 months and 2 days Net Active Service This Period.

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

11.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 serious offense, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence shows that the applicant was convicted by civil court on the charges of resisting arrest and arson.  As such, an under other than honorable conditions discharge was equitable and proper.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  The Board does not upgrade a properly issued discharge based solely on the passage of time.  While it is regrettable that the applicant is now experiencing problems with finding adequate employment, this does not serve as the basis for granting his request.

5.  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 has failed to submit evidence that would satisfy that 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.



      __________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)                                         AR20080008978



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ABCMR Record of Proceedings (cont)                                         AR20080008978



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