IN THE CASE OF:	

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080012270 


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 general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded for the following reasons:  (1) he has been a good citizen since his discharge; (2) he received some awards and decorations while in the service; (3) his conduct and efficiency rating/behavior and proficiency marks were mostly pretty good; (4) while he was incarcerated his behavior was good; (5) he made a mistake and he deserves a second chance; (6) he served his country for a few years; and (7) his discharge was improper because it was based on his civilian conviction. 

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 23 June 1987 for a period of 
3 years and 15 weeks.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewmember).  

3.  On 25 May 1988, the applicant was convicted by a summary court-martial of being disrespectful to a noncommissioned officer, disobeying a lawful order, and three specifications of larceny.  He was sentenced to be reduced to private (PV1)/E-1, to forfeit $400.00 pay, and 30 days confinement.  On 1 June 1988, the convening authority approved the sentence.  

4.  On 6 April 1989, the applicant pled guilty to civilian charges of attempted rape and unlawful restraint and was sentenced to 3 to 10 years in a state prison. 

5.  On 19 May 1989, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14, for misconduct (civil conviction).  The unit commander cited the applicant’s civil conviction.

6.  On 19 May 1989, a copy of the administrative elimination proceedings was delivered to the applicant and he refused to acknowledge receipt of the administrative action.   

7.  On 30 October 1989, 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 28 November 1989 under the provisions of Army Regulation 
635-200, paragraph 14-12, for misconduct (civil conviction).  He had served 
1 year, 9 months, and 20 days of creditable active service with 260 days of lost time due to civilian confinement.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.    

9.  On 6 March 1995, the Army Discharge Review Board denied the applicant’s request for a general discharge.

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 3-7b, 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.  Good post-service conduct alone is not normally a basis for upgrading a discharge. 

2.  The applicant’s record of service included one summary court-martial conviction and 260 days of lost time.  It appears he also committed serious civil offenses while in the Army.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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 and he refused 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)                                         AR20080012270



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ABCMR Record of Proceedings (cont)                                         AR20080012270



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