IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20090001448 


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, in effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that he regrets his past mistakes and asks that his discharge be reconsidered.  He also contends that he paid his debt to society and is a new and outstanding citizen.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of this 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's military records show that he enlisted in the Regular Army (RA) on 
31 July 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  After serving his initial permanent duty assignment at Fort Riley, Kansas, he departed Fort Riley on
29 July 1980 for an assignment in Germany.  However, prior to departing for Germany, the applicant was confined by civil authorities on 31 July 1980 in Kansas.  He was subsequently convicted of aiding and abetting a robbery.  As a result, he was sentenced to 2 to 10 years of confinement.  He entered the Kansas State Industrial Reformatory (KSIR) on 27 October 1980 [the KSIR was subsequently renamed the Hutchinson Correctional Facility].  On 28 August 1981, the applicant departed the KSIR with instructions to report in person to what appears to be a probation officer in California.  However, on 29 August 1981, he was reported as absent without leave (AWOL).  On 28 September 1981, he was dropped from the rolls (DFR) of the Army and classified a deserter.  He remained in a DFR status until he surrendered to military authorities at the Fort Ord, California, AWOL Apprehension Section on        15 October 1981.

3.  On 3 February 1982, the applicant's commanding officer advised him that he was being considered for separation from the service for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct).  He was also advised of his rights.

4.  Additionally, on 3 February 1982, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of chapter 14, Army Regulation 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He also elected not to submit statements in his own behalf and waived representation by counsel.  He also understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  In a separate statement, the applicant stated that he was convicted of aiding and abetting a robbery, but that he did not intend to file an appeal of his conviction.  

5.  The applicant was placed on excess leave on 3 February 1982.

6.  On 28 October 1982, the proper separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade.  On
12 November 1982, the applicant was discharged accordingly.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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 to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. 

9.  Army Regulation 635-200, paragraph 3-7a, provides, in pertinent part, 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.

10.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, 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 contends that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge.

2.  The fact that the applicant regrets his past mistakes is not questioned; however, the applicant's regret for his actions which ultimately led to his discharge is not a sufficient basis for upgrading his discharge.  Additionally, while the applicant 
contends that he paid his debt to society and is a new and outstanding citizen, he provided no evidence which shows that he has made any contributions to society which would warrant special consideration.
3.  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.

4.  The evidence of record shows that the applicant was convicted of aiding and abetting a robbery by a civil court.  As a result, he was discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to a civil conviction.  The applicant failed to provide any evidence which proves that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade of his discharge.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 for correction of the records of the individual concerned.



      ___________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)                                         AR20090001448



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ABCMR Record of Proceedings (cont)                                         AR20090001448



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