IN THE CASE OF:	  

		BOARD DATE:	        15 September 2009

		DOCKET NUMBER:  AR20090007648 


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 to an honorable discharge.

2.  The applicant states that his discharge should be upgraded because the circumstances of his discharge were not related to military matters and they were over 20 years ago.

3.  The applicant provides no documentary evidence in support of 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 the Regular Army and entered active duty on 2 January 1985 following participation in the Delayed Entry Program from 21 November 1984 through 1 January 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  The highest rank the applicant attained while serving on active duty was specialist/pay grade E-4.

3.  A DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code for Military Justice (UCMJ)), dated 27 September 1985, shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for stealing the property of another Soldier.  This offense was in violation of Article 121 of the UCMJ.

4.  On 22 April 1986, the applicant received a letter of reprimand from the commanding general of the 9th Infantry Division, Fort Lewis, Washington, following his apprehension for driving under the influence with a blood alcohol content of 0.15 percent.  The letter of reprimand was directed to be filed in the applicant's official military personnel file.

5.  A DA Form 4187 (Personnel Action), dated 21 May 1991, shows the applicant's duty status was changed from ordinary leave to confined in the hands of civil authorities effective 21 May 1988.

6.  Item 27 (Remarks) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that on 21 May 1988 the applicant was arrested by Cook County, Illinois, civil authorities while on authorized ordinary leave and charged with second degree murder and armed robbery.  The applicant was convicted and sentenced to 10 years of imprisonment with the Illinois Department of Correction. 
This item also shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 (Misconduct), effective 4 January 1991.

7.  176th Personnel Service Company Orders 224-16, dated 28 December 1990, reassigned the applicant to the U.S. Army Transfer Point for transition processing with a discharge date of 4 January 1991.

8.  The applicant's DD Form 214 (Certificate or Release or Discharge from Active Duty) as corrected by a DD Form 215 (Correction to DD Form 214, Certificate or Release or Discharge from Active Duty), dated 14 January 1992, shows the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of conviction by civil court.  This form also shows that he received an under other than honorable conditions characterization of service.  He was credited with time lost during the period 21 May 1988 through 4 January 1991.

9.  Paragraph 14-5 of Army Regulation 635-200, in effect at the time, provided that a Soldier may be considered for discharge when initially convicted by civil authorities or when action was taken tantamount to a finding of guilty if a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or the sentence adjudged by civil authorities included confinement of 6 months or more without regard to suspension or probation.  A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this provision.

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

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant contends that his offenses occurred over 20 years ago and were unrelated to military matters, the evidence shows that he had a record of indiscipline and his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and subsequent conviction by a civil court also renders his service unsatisfactory.  Therefore, he is not entitled to have his discharge upgraded to either a general or an honorable discharge.

3.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of his discharge.  Therefore, government regularity in the discharge process is presumed.

4.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  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 any evidence that would satisfy this requirement and there is no basis for granting his request.

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)                                         AR20090007648



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ABCMR Record of Proceedings (cont)                                         AR20090007648



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