IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012584 


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 under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, that the civilian court had the opportunity to accept the Army's recommendation for probation but instead sentenced him to time in prison.  He only served 5 months but by then he had been discharged because of his civilian conviction.  He realizes that his own actions and poor judgment led to his situation.  He would appreciate any help in changing his discharge to one that will make him eligible for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional documentation 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.  On 2 February 1983, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational (MOS) 91E (Dental Specialist).

3.  On 2 July 1984, while assigned to Fort Carson, Colorado, the applicant was convicted in a civilian court of second degree assault.  He was sentenced to the Department of Corrections for a term of 3 years.  Probation was denied.

4.  On 18 July 1984, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense (second degree assault) for which he was convicted in civilian court and sentenced to 3 years confinement.

5.  On 19 July 1984, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected to make a statement in his own behalf, but it is not contained in the available evidence.

6.  On 16 August 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

7.  Accordingly, on 23 August 1984, the applicant was discharged under other than honorable conditions.  He had completed 1 year, 6 months and 11 days of creditable active service, and he had 12 days of lost time due to being in confinement.

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

9.  Army Regulation 635-200 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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 128, for assault is a dishonorable discharge and confinement for 6 months.

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.  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 contends that a civilian court denied him probation and he served only 5 months in civilian confinement; therefore, he wants his discharge upgraded. 

2.  The record clearly shows the applicant was convicted by a civilian court and sentenced to 3 years confinement.  

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  Based on the applicant's serious offense that resulted in a civilian conviction and confinement, he is not entitled to an upgrade of his discharge.

6.  The applicant's desire to obtain VA benefits is not justification for an upgrade of an individual's discharge.




6.  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.



      _______ _   _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)                                         AR20090012584



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012584



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1