IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080009394 


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 honorable.

2.  The applicant states, in effect, that he was told his discharge could be upgraded with this application.  He contends that his service record was good before this incident.

3.  The applicant provides no additional evidence in support of his 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.  The applicant enlisted in the Regular Army on 28 November 1984 for a period of 3 years and 14 weeks.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).  

3.  On 24 June 1986, nonjudicial punishment was imposed against the applicant for failure to repair (two specifications), dereliction of duty, and making a false official statement.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, restriction, and extra duty.

4.  On 9 October 1986, the applicant pled guilty in civilian court to Accessory and Carrying a Concealed Weapon and was sentenced to serve one year. 

5.  On 9 December 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5, for misconduct due to a civilian conviction.  

6.  On 15 December 1986, the applicant consulted with counsel, waived his rights, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, further understood that as the result of issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life, and he elected not to submit a statement on his own behalf.     

7.  On 3 February 1987, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 17 February 1987 under the provisions of Army Regulation
635-200, paragraph 14-5, for misconduct due to a civilian conviction.  He had served 1 year, 7 months, and 10 days of creditable active service with 220 days of lost time due to civilian confinement.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  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 

(military or civilian offense), and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  

11.  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.  

12.  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.  This Board may upgrade a discharge based upon the merits of the case, not merely because one has applied for an upgrade.  

2.  The applicant’s record of service included one nonjudicial punishment and 
220 days of lost time.  He also committed serious civil offenses while in the Army. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.  

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


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.



      _______xxxx___________
               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)                                         AR20080009394



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009394



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1