IN THE CASE OF:	  

		BOARD DATE:	        9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007712 


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 discharge be upgraded to honorable or general. 

2.  The applicant states his discharge should be changed because he had completed 85 percent or more of his enlistment.  He excelled in his military duties starting with his promotion during basic training.  His problems started when his father died.  

3.  The applicant provides no supporting documents.

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 
13 March 1984.  He was advanced to pay grade E-2 on 10 May 1984 and completed basic training the next day. 

3.  He completed advanced individual training in military occupational specialty 45L as an artillery repairman and he completed basic airborne training.  The applicant was advanced to pay grade E-3 on 1 February 1985 and to specialist four, pay grade E-4 on 1 October 1985.

4.  On 14 March 1986, the applicant was apprehended by civilian authorities and charged with 2nd degree burglary.  He was released on $50,000 bond and scheduled for trial on 15 April 1986. 

5.  At a mental status evaluation on 11 August 1986 the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was considered to have the mental capacity to understand and participate in administrative proceedings.  He was mentally responsible and met retention requirements prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  

6.  On 13 August 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent from his appointed place of duty on 24 July and 1 August 1986 and for willful disobedience of a commissioned officer.  The punishment consisted of reduction to pay grade E-3, forfeiture of $183 pay per month for 1 month and 14 days restriction and extra duty.

7.  A DA Form 4187 (Personnel Action), dated 16 September 1986, shows the applicant was convicted of burglary in civilian court and sentenced to 5 years imprisonment.

8.  The applicant's discharge packet is not available.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged, on 3 March 1987, under the provisions of Army Regulation 635-200, paragraph 14-5, with an under other than honorable conditions discharge due to conviction by civil court.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.   As then in effect, paragraph 14-5 provided that a Soldier who was convicted by civil authorities or subject to an action tantamount to a finding of guilty, including similar adjudication in juvenile proceedings, could be processed for discharge.  
A punitive discharge must have been authorized for the same or a closely related offense under the Manual for Courts Martial or the individual must have been sentenced to confinement for 6 months or more, without regard to any suspension or probation.  A Soldier being discharged under these provisions was to be considered for reduction in rank. 
10.  Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

11.   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.

12.  Paragraph 3-7b of Army Regulation 635-200 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 states his discharge should be changed because he had completed 85 percent or more of his enlistment.  He excelled in his military duties starting with his promotion during basic training.  His problems started when his father died.  

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

3.  The applicant's early success as a Soldier is acknowledged, but it does not outweigh the misconduct for which he was discharged.   

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)                                         AR20090007712





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ABCMR Record of Proceedings (cont)                                         AR20090007712



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