IN THE CASE OF:	

		BOARD DATE:	1 September 2009    

		DOCKET NUMBER:  AR20090007061 


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 under other than honorable conditions discharge to fully honorable. 

2.  The applicant states that his discharge should be upgraded.

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 3 years on 30 August 1984 and held military occupational specialty 31C (Radio Operator/Maintainer).  His records also show he executed a 3-year reenlistment on 4 June 1987 and attained the rank/grade of specialist/E-4. 

3.  On 2 October 1988, the applicant failed to report to his permanent duty station in Korea and was accordingly reported in an absent without leave (AWOL) status.  He was subsequently dropped from the Army rolls on 31 October 1988. 

4.  On 22 May 1989, a civilian liaison at the Fort McPherson, GA, Office of the Provost Marshal notified a special agent at the Fort McPherson Resident Agency, U.S. Army Criminal Investigation Command (USACIDC) that the applicant had been arrested for drug charges (possession of cocaine with intent to distribute and abandonment of a controlled substance) and was confined at the Atlanta Pretrial Confinement Facility as of 13 May 1989.   

5.  On 22 October 1990, the applicant's immediate commander initiated separation action against the applicant under the provisions of paragraph 14-5 of Army Regulation 635-200 (Personnel Separation) by reason of misconduct-conviction by civil court.

6.  On an unknown date in 1990, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to voluntarily waive consideration of his case by an administrative separation board upon receiving a characterization of service no less than a general, declined submitting a statement on his own behalf, and indicated that he did not intend to appeal the civil conviction.

7.  On 6 November 1990, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct-conviction by civil court.   The immediate commander further remarked that he did not consider it feasible to accomplish any other disposition and recommended an under other than honorable conditions character of service.

8.  On 6 November 1990, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service.

9.  On an unknown date in November 1980, the applicant's senior commander recommended disapproval of the applicant's conditional waiver and approval of the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 with the issuance of an under other than honorable conditions character of service.

10.  On 16 November 1990, the separation authority disapproved the applicant's request for a conditional waiver and directed the applicant's case be referred to a hearing before a board of officers.

11.  On 4 February 1991, the applicant completed his sentence and was released from civilian confinement to military control in Atlanta, GA.  He was subsequently assigned to the Special Processing Company, Fort Knox, KY.

12.  On 6 February 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-civil conviction and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant waived consideration of his case by an administrative separation board, waived personal appearance before a board, and elected not to submit a statement on his own behalf.

13.  On 22 February 1991, 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, and directed the applicant's service be characterized as under other than honorable conditions.  Accordingly, the applicant was discharged on 2 April 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a character of service of under other than honorable conditions and erroneously listed the authority as chapter 10 of Army Regulation 635-200 (for the good of the service-in lieu of a court-martial).  This form further confirms he completed a total of 5 years, 1 month, and 2 days of creditable active military service and had 912 days of lost time.

14.  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.

15.  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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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 contention that his discharge should be upgraded. 

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.  Notwithstanding the erroneous entry on his DD Form 214, the applicant 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 ____  ____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)                                         AR20090007061





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ABCMR Record of Proceedings (cont)                                         AR20090007061



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