IN THE CASE OF:	  

		BOARD DATE:	  	  13 November 2008

		DOCKET NUMBER:  AR20080014662 


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 (UOTHC) discharge be upgraded to general under honorable conditions.  

2.  The applicant states that his civilian conviction was handled by the State of North Carolina from Fort Bragg, North Carolina.  

3.  The applicant provides a supplemental letter, dated 15 August 2008; his DD Form 214 (Certificate of Release or Discharge from Active Duty); and statements from a Public Health Advisor, Womack Army Hospital.  

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 21 October 1977.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 36C (wire system installer/operator).  He later completed basic airborne training.  His highest grade attained was specialist four.  He was honorably discharged on 28 August 1980 for the purpose of immediate reenlistment.

3.  The applicant reenlisted on 29 August 1980 for a period of four years.  

4.  On 20 November 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 15 October 1980 to 16 October 1980 and five specifications of failing to go to his appointed place of duty.

5.  On 3 April 1981, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 25 March 1981 to 30 March 1981.

6.  On 13 February 1982, the applicant was charged with breaking or entering and larceny in the State of North Carolina, County of Cumberland District Court.  He was sentenced to confinement for 3 years in the North Carolina Department of Corrections with four years suspension, four years probation, and a fine of $776.00.

7.  His service personnel records contain a DA Form 4187 (Personnel Action), dated 28 January 1983, which shows he was confined to the Cumberland County Jail, Fayetteville, North Carolina from 26 January 1983 to 31 January 1983 for violation of parole and failure to pay debts.  

8.  On 5 April 1983, the company commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5 by reason of conviction by a civil court.  He was advised of his rights.

9.  On 12 May 1983, the approving authority recommended that a board of officers be convened to determine if the applicant should be separated due to conviction by civil court based on Army Regulation 635-200, chapter 14, section II.  The applicant was notified to appear before a board of officers on 19 May 1983.  The results of the board of officers are not available.  

10.  On 5 August 1983, the applicant accepted NJP under Article 15, UCMJ for failing to obey a lawful order and for being disrespectful in language toward his superior noncommissioned officer.  

11.  The applicant's complete discharge packet is not available.  However, his DD Form 214 shows he was discharged on 24 August 1983 under the provisions of Army Regulation 635-200, chapter 14, section II by reason of civil conviction.  He had completed a total of 5 years, 9 months, and 6 days of creditable active service with 29 days of lost time due to AWOL and civil confinement.  

12.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  That regulation provides, in pertinent part, for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  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.  In the absence of evidence to the contrary, it is presumed that 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.
2.  The applicant was found guilty by a civil court in February 1982 for breaking or entering and larceny.  He was sentenced to confinement for 3 years with four years suspension, four years probation, and he was fined.

3.  The applicant's service records show he received three Article 15s during the period under review and was confined to the Cumberland County Jail, Fayetteville, North Carolina from 26 January 1983 to 31 January 1983 for violation of parole and failure to pay debts.  

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a general under honorable conditions discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.  

5.  There is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  

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.




      _______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)                                         AR20080014662





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ABCMR Record of Proceedings (cont)                                         AR20080014662



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