BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090018284 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant makes no additional statement. 

3.  The applicant did not provide any additional documentary evidence 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's records show he enlisted in the Regular Army (RA) for a period of 4 years on 20 June 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  His records also show he executed a 3 year reenlistment in the RA on 17 January 1983.  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  The applicant's records also show he served in Korea from 8 March 1981 to 3 March 1982 and 2 July 1983 to 6 July 1984.  His awards and decorations are the Army Commendation Medal (1st Oak Leaf Cluster), Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon with Numeral 1, Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Air Assault Badge, and Driver and Mechanic Badge.

4.  On 30 September 1985, the applicant was convicted by civil court for the civilian offense of attempted murder (later reduced to aggravated assault) and sentenced to confinement in the Texas Department of Correction for a term of 5 years (later changed to probation for 5 years).

5.  On 30 June 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-5 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct-conviction by civil court.  

6.  On 19 September 1986, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and he elected not to submit a statement in his own behalf. 

7.  The applicant further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  On 19 September 1986, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct-conviction by civil court.  The immediate commander remarked that the applicant was convicted and seriousness of his offense reduced the effectiveness as a leader and relationship with his peers and warranted separation in accordance with applicable regulation.  
9.  On an unknown date, the applicant’s intermediate commander concurred with the request for the applicant's elimination and recommended approval of the request for discharge.

10.  On 25 February 1987, the applicant's senior commander recommended approval of the applicant’s request for discharge with the issuance of an under other than honorable conditions discharge.

11.  On 2 June 1987, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200, by reason of misconduct-conviction by civil court and directed the applicant's service be characterized as under other than honorable conditions.  On 19 June 1987, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 19 June 1987 with a character of service of under other than honorable conditions.  This form further confirms that the applicant completed 6 years, 3 months, and 10 days of creditable active military service and had 628 days of lost time.

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of this regulation.

14.  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.

15.  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 requests that his discharge be upgraded to honorable.

2.  The evidence of record shows the applicant was convicted by civil court for the civilian offense of aggravated assault.  Accordingly and as required by regulation his chain of command initiated separation action against him due to his civil conviction.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s civilian conviction diminished the quality of his service.

4.  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 evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090018284





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ABCMR Record of Proceedings (cont)                                         AR20090018284



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