IN THE CASE OF:	

		BOARD DATE:	15 December 2009

		DOCKET NUMBER:  AR20090012201 


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 honorable conditions discharge be upgraded to a general, under honorable conditions, discharge.

2.  The applicant states that he has proven to be a productive member of society and he is deeply feeling remorse for actions he committed that led to his current discharge.  He also states that he even attempted to join the Army Reserve at age 38, but was turned down because of his current status.

3.  The applicant provides no additional documentation in support of his discharge.

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 military records show that he enlisted in the Regular Army, in pay grade E-1, on 31 January 1977.  He completed basic and advanced individual training and was awarded military occupational specialty 12B (combat engineer).  He was promoted to pay grade E-4 on 1 May 1978.  He was honorably discharged on 30 January 1979 for the purpose of reenlistment.  He reenlisted on 31 January 1979 for 3 years.  

3.  On 3 September 1979, the applicant was reported absent without leave (AWOL) due to being apprehended and confined by civilian authorities.  He was returned to duty on 13 September 1979.  He was again reported AWOL on 29 September and returned to duty on 3 October 1979.  He was reported AWOL for a third time on 10 December and returned to duty on 12 December 1979.  He was again reported AWOL on 2 January 1980. 

4.  On 2 January 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters and Headquarters Company, 17th Engineer Battalion, 2nd Armored Division, Fort Hood, Texas.  The applicant was charged with two specifications of being AWOL from on or about 2 January 1980 to on or about an unspecified date and from 10 December to 17 December 1979.

5.  The applicant was dropped from the rolls of his organization on 4 January 1980.

6.  On 29 January 1981, the applicant's company commander notified him he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 14, section III for conviction by civil court.  

7.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 4 February 1981, shows a new investigation was initiated pertaining to the applicant being apprehended by civilian authorities on 5 February 1980, confined, and serving a 5-10 years sentence for Aggravated Robbery and
2-3 years for each count of two counts of theft by check.  He was restored to the rolls of his unit for elimination action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 14, section III, effective 5 February 1980.  



8.  On 17 March 1981, the applicant acknowledged the proposed separation action for conviction by civil court.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged he understood that, as a result of issuance of a discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran.

9.  On 25 March 1981, the applicant’s battalion commander recommended approval of his separation.

10.  On 13 April 1981, the appropriate separation authority approved the discharge and specified the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 

11.  The applicant was separated on 14 April 1981, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, section III, for Misconduct-Conviction by Civilian Authorities.  His character of service was under other than honorable conditions.   He was credited with 4 months and 9 days net active service and 2 years and 6 months prior active service.  He was credited with time lost from 3 September through 12 September 1979, from 29 September through 3 October 1979, from 10 December through 16 December 1979, and from 2 January through 4 February 1980.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority could have directed a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant established a record of misconduct in his second term of service which resulted in his repeatedly being punished under Article 15 for being AWOL; being apprehended, sentenced, and confined by civilian authorities; and being discharged under the provisions of Army Regulation 635-200, chapter 14, section III, for this conviction by civilian authorities.

2.  The evidence also shows that after his civilian confinement the applicant was notified by his company commander of his intention to separate him from the Army, and that if discharged, he could receive a discharge under other than honorable conditions.  After consulting counsel, the applicant acknowledged the notification, waived his rights to appear before a board of officers, and elected not to submit a statement in his own behalf.   

3.  The applicant's contentions that he has proven to be a productive member of society and is deeply remorseful for his actions have been noted.  However, based on the available evidence, there is no basis for the upgrade of the applicant's discharge to general under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument that he is warranted of an upgrade of his discharge 

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could direct a general discharge, if such a discharge was merited by the Soldier's overall record.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his 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)                                         AR20090012201



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ABCMR Record of Proceedings (cont)                                         AR20090012201



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