IN THE CASE OF:
BOARD DATE: 28 August 2008
DOCKET NUMBER: AR20080010946
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, through his elected representative, in effect, reconsideration of the Boards denial of his request that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.
2. The applicant states that on 4 August 1985, he was in a terrible car accident that sadly took the lives of three human beings, and for that he will forever be remorseful. He has to live with his actions every day of his life. He has asked his God to forgive him.
3. The applicant adds he was unaware that there was a 15-year statute of limitations to apply for an upgrade of his discharge, which was mentioned in the Boards first consideration of his case. He is also confused about the date of his separation. The Board stated that he was discharged on 27 May 1988, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 31 July 1990, and his DD Form 428 (Application For Identification Card) shows 28 May 1988.
4. The applicant provides a copy of the Boards denial of his original request.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070003682, on 11 September 2007.
2. The applicant has not submitted any new evidence. However, he has submitted new argument pertaining to the date of his discharge which requires that the Board reconsider his case.
3. In the Boards original consideration it was noted that:
a. On 9 May 1988, the applicants unit commander notified the applicant of initiation of separation action under the provisions of chapter 14 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of civil conviction, with a general discharge (GD). The unit commander indicated that he was pursuing the applicant's discharge because he was convicted by the Seventh Circuit Court, Penal Branch, The First Circuit of Panama, of negligent homicide to the prejudice of three Panamanian nationals. On 4 August 1985, while intoxicated, the applicant drove at a high rate of speed and struck a small concrete building resulting in the death of his passengers. He was sentenced to 3 years of unsuspended confinement. His appeal was considered by the Second Superior Tribunal of Panama. The appellate court affirmed the conviction, but reduced the sentence imposed to 30 months of unsuspended confinement.
b. On 11 May 1988, the applicant waived his right to consult with legal counsel and to appear before an administrative separation board. He did not submit a statement in his own behalf. The intermediate commanders recommended he be separated with an under other than honorable conditions discharge.
c. On 27 May 1988, the separation authority waived a rehabilitation transfer and directed the applicant be discharged with an under other than honorable conditions discharge.
d. On 27 May 1988, the applicant was discharged by reason of conviction by civil court (foreign tribunal) after completing 4 years, 7 months, and 28 days of active military service in the period under review.
4. A further review of the applicants records reveals that, while the applicants discharge had been approved and a DD Form 214 had been issued to reflect his discharge effective 27 May 1988, that DD Form 214 was not distributed. As such, it had no force or effect.
5. The applicant was discharged UOTHC on 31 July 1990. That DD Form 214 was distributed and, therefore, is the valid separation document in this case.
6. In its original review of the applicants case, the Board noted that there was 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. While a DD Form 214 was prepared for the applicant on 27 May 1988, it was never distributed. As such, it had no force or effect. The applicant was actually discharged UOTHC on 31 July 1990. The Board was in error when it cited 27 May 1988 in its original consideration of this case.
2. The 15-year statute of limitations mentioned by the Board in its original consideration of this case was the Army Discharge Review Boards statute of limitations, not this Boards statute of limitation.
3. While this Board has a 3-year statute of limitations, the original Board considered the applicants request on its merits, and this Board is considering the applicants request on its merits. The Boards 3-year statute of limitation was only applied when the applicants request was found to be without merit.
4. The applicant has not submitted any evidence or argument which would warrant upgrading his UOTHC discharge.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070003682, on 11 September 2007.
____________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) AR20080010946
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