BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018841 


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 general.

2.  The applicant states, in effect, that he is making the above request to aid him in getting his life back together after being incarcerated for 23 years.  He does not have any other resources and he will need help upon his release.  He would like to apply for vocational training.  He may also apply for a government related job on an Army installation and he does not want his discharge to hinder his employment opportunities.

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 25 July 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 88M (Motor Transport Operator).  He was subsequently assigned duty at Fort Hood, Texas.

3.  On 21 January 1986, the applicant was tried in felony court in Bell County, Texas, for aggravated assault.  His punishment included 10 years probation and a $5,000.00 fine.

4.  On 1 October 1986, the applicant's probation was revoked.

5.  On 2 October 1986, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, due to conviction by civil authorities.  The commander stated that the applicant had been given the opportunity to soldier his way back into good standing, but instead he continued a criminal course of conduct.  He was still pending a civilian charge of sexual assault.  Further rehabilitative efforts were impracticable.

6.   On 2 October 1986, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

7.  On 5 December 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a 
DD Form 796A (Under Other Than Honorable Discharge Certificate).

8.  Accordingly, on 16 January 1987, the applicant was discharged under other than honorable conditions.  He had completed 1 year, 10 months and 17 days of creditable active service, and he had 7 months and 5 days of lost time due to being in confinement.

9.  On 5 May 1989, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  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 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.

11.  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 his discharge should be upgraded so he can get his life back together after being incarcerated for 23 years.  He would like to apply for vocational training.  He also may apply for a government related job and he does not want his discharge to hinder his employment opportunities.

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

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

4.  The applicant's desire to obtain vocational training and employment opportunities are not justification to upgrade his discharge.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090018841



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ABCMR Record of Proceedings (cont)                                         AR20090018841



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