IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090010175 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states that his drinking companion pulled a gun to rob a cab driver; he was scared and ran.  Although he knew nothing about it, he was convicted and served 9 1/2 years.  It was a case of guilt by association, of being in the wrong place at the wrong time.  Prior to entering the service he had no problem with authority.

3.  The applicant provides no documentation 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 enlisted in the U.S. Army Reserve and entered initial active duty for training on 17 November 1979.  His former high school reported that he had not completed the 9th grade.

3.  He completed basic training at Fort Knox, Kentucky, and started advanced individual training (AIT) at Fort Benjamin Harrison, Indiana, as a personnel administration specialist.  On 9 May 1989 he was reassigned to Fort Jackson, North Carolina, for AIT as a unit supply specialist.

4.  On 10 July 1980 he was reassigned to one-station unit training at Fort Benning, Georgia, for training as an infantryman.

5.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 4 August 1980 for a 3-day absence without leave (AWOL).  He was AWOL again on 13 August 1980, apprehended on-post on 21 August 1980, and was AWOL again on 22 August 1980.

6.  On 5 September 1980 the applicant was reported to be confined in the Russell County jail where he was being held on charges of robbery and assault.

7.  In his recommendation for immediate discharge the company commander noted that the applicant had been convicted of attempted murder and armed robbery and sentenced to 16 years in the state penitentiary.

8.  On 29 May 1981 the applicant consulted with counsel and was advised of his rights.  He waived consideration of his case by a board of officers and declined to submit statements on his own behalf.  He declined a separation physical.

9.  The intermediate commanders recommended discharge and the separation authority approved the recommendation and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

10.  The applicant was discharged on 9 September 1981 under the provisions of Army Regulation 635-200, chapter 14.  In approximately 21 1/2 months of affiliation, he had 5 months and 24 days of creditable service.

11.  Army Regulation 635-200 (Personnel Separations) 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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Paragraph 3-7b of the regulation 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 that his drinking companion pulled a gun to rob a cab driver; he was scared and ran.  Although he knew nothing about it, he was convicted and served 9 1/2 years.  It was a case of guilt by association, of being in the wrong place at the wrong time.

2.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.



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)                                         AR20090010175



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ABCMR Record of Proceedings (cont)                                         AR20090010175



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