IN THE CASE OF:	  

		BOARD DATE:	        16 JUNE 2009

		DOCKET NUMBER:  AR20090006006 


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 an upgrade of his discharge to honorable.

2.  The applicant states that his conviction a civil court was for misconduct that had nothing to do with infractions against military law.  He also adds that his incident happened 30 years ago and he had not been in trouble since.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 January 1981, in support of his request.

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 record shows he enlisted in the Regular Army for a period of 4 years on 28 January 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was promoted through the ranks to specialist four/E-4 on 1 October 1979.

3.  The applicant’s record further shows he was awarded the Parachutist Badge, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant’s record reveals a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 3 March 1977, for disobeying a lawful order from his battalion commander on or about 2 March 1977.  His punishment consisted of a forfeiture of $50.00 pay, 7 days of extra duty, and 7 days of restriction; and

	b.  on 27 April 1979, for failing to go at the prescribed time to his appointed place of duty on or about 16 April 1979.  His punishment consisted of a reduction to private first class/E-3 (suspended for 60 days), a forfeiture of $119.00 pay, 7 days of restriction, and 14 days of restriction.

5.  On 16 November 1979, the applicant appeared before the Cumberland County District Court Division, Fayetteville, NC, and pleaded guilty to the civilian charges of unlawfully uttering, issuing, and delivering worthless checks.  He was convicted by the Court and sentenced to 1 to 3 years of imprisonment.

6.  On 19 December 1979, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct – conviction by civil court.

7.  On an unknown date in 1979, the applicant acknowledged receipt of the commander's intent to separate him and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He also acknowledged that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He requested consideration of his case by a board of officers, personal appearance before a board of officers, and representation by his appointed counsel.
8.  On 19 December 1979, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by civil court.  He indicated that the applicant’s tour in this unit was characterized by a lack of motivation and unwillingness to perform to the minimal standards and a distinct inability to handle his personal affairs despite frequent counseling.

9.  On 20 December 1979, the applicant’s intermediate commander reviewed the applicant's discharge and recommended approval with an under other than honorable conditions characterization of service.

10.  On 22 February 1980, the applicant’s senior commander also recommended approval of the applicant’s discharge and stated that the applicant’s incarceration warranted an immediate discharge.  The senior commander also indicated that the applicant elected consideration of his case by a board of officers.

11.  On 2 June 1980, a Board of Officers convened at Fort Bragg, NC, to consider separating the applicant from the Army.  The Board found the applicant undesirable for further retention in military service because of conviction by civil court and recommended his discharge with the issuance of an under other than honorable conditions character of service.

12.  On 29 August 1980, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – conviction by civil court, directed the applicant be furnished an under other than honorable conditions discharge, and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 19 January 1981.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions character of service.  This form further confirms he completed 1 year, 9 months, and 16 days of creditable military service and had 430 days of lost time.

13.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions 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.

15.  Army Regulation 635-200, paragraph 3-7a, provides 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  Army Regulation 635-200, in pertinent part, states the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was convicted by a civil court of misconduct that was unrelated to his military service was carefully considered; however, it is not sufficiently mitigating in granting him the requested relief.

2.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  He was separated under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct – conviction by civil court.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct of civil conviction.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  Characterization of service may be based on conduct in the civilian community  if that conduct brings discredit on the Army or is prejudicial to good order and discipline.  The applicant's misconduct brought discredit on the Army; therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____XX____  ____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)                                         AR20090006006



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006006



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1