IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080017394 


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.

2.  The applicant states that he would like to have his discharge upgraded.

3.  The applicant provides no additional documents with 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 Shreveport, Louisiana on 29 January 1979 for a period of 4 years, training as an infantryman and a cash enlistment bonus.  He completed his training and was initially assigned to Fort Polk, Louisiana before being transferred to Garlstedt, Germany on 23 November 1980.  He was promoted to the rank of sergeant on 23 July 1981.

3.  On 17 August 1982, he reenlisted for a period of 3 years and assignment to Fort Polk, Louisiana.  He departed Germany on 20 November 1982 for assignment to Fort Polk.  He was assigned to an infantry company for duty as a fire team leader.

4.  On 24 October 1984, the applicant was arrested and confined by civil authorities in Leesville City Jail for Second Degree Murder.  He was released on bond on 28 October 1984 and returned to military control.  On 19 November 1984, he was again confined by civil authorities until he could meet a new bail of $60,000 or a court date was set.

5.  On 11 January 1985, the applicant was sentenced, pursuant to his plea agreement, in the Thirtieth Judicial District Court, State of Louisiana, to serve 21 years of imprisonment at hard labor for manslaughter and 10 years of imprisonment at hard labor for aggravated battery, with sentences to be served consecutively.  As part of his plea agreement he also agreed not to appeal his conviction or sentence.

6.  On 3 February 1985, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to conviction by civil authorities.

7.  After consulting with counsel, the applicant waived all of his rights and elected to submit a statement in his own behalf, whereas he requested that he receive a more favorable discharge based on his overall record of good service to his nation.

8.  The appropriate authority (a major general) approved the recommendation for discharge on 4 April 1985 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 12 April 1985, under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He had served 5 years, 7 months and 7 days of total active service.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.  

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.  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.  Accordingly, the narrative reason and separation code are appropriate under the circumstances of his case.
  
3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his misconduct.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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.




      _______ _XXX   _______   ___
               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)                                         AR20080017394





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ABCMR Record of Proceedings (cont)                                         AR20080017394



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