IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090020325 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states his discharge status was based on a non-military criminal charge and that his military service was good.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 December 1982.

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 personnel records show he enlisted in the Regular Army on 21 May 1980 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 05C (Radio Teletype Operator).

3.  On 9 October 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.

4.  On 31 October 1980, the applicant was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 68th Air Defense (Artillery) at Fort Bragg, NC.

5.  On 10 August 1981, in the Superior Court Division, Cumberland County, NC, the applicant was convicted of two charges of felony auto larceny and one charge of felonious breaking and entering a vehicle.  He was sentenced to imprisonment for 3 years.  The court recommended he serve his sentence in the Work Release Program.

6.  On 12 February 1982, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

7.  On 14 April 1982, the applicant's commander notified him he was recommending him for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, misconduct - conviction by civil court.  The commander further notified him he could receive a discharge under other than honorable conditions as a result of this action.

8.  The commander advised the applicant of his right to:

* consult by correspondence with his appointed counsel
* be represented by counsel in his absence to present his case before a board of officers.
* submit statements in his own behalf
* waive any of these rights
* withdraw any waiver of his rights at any time prior to the date the discharge authority directs or approves his discharge 


9.  On 14 July 1982, the applicant submitted a statement wherein he stated he had been advised by counsel of the basis for the contemplated administrative action which would result in separating him from the Army.  He also stated he:

* had been advised of his rights and the effect of waiving his rights
* waived a board of officers
* was submitting statements in his own behalf

10.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

11.  In the statement he submitted, he stated he wanted very much to remain in the Army.  He attributed his problems to his drinking and problems with his wife.  He stated that drinking and crime does not solve problems; it only makes them worse.

12.  The applicant also submitted a statement from a corrections officer.  The officer stated the applicant had a deep concern for what the future held for him.  He stated the applicant had a good head on his shoulders and he was prepared to deal with the future.  He stated the applicant hadn't had any infractions and was considered a model inmate.

13.  On 19 July 1982, the applicant's commander submitted a statement explaining the delay in processing the discharge action.  According to the statement, there was some confusion as to exactly where the applicant was incarcerated.

14.  On 19 July 1982, the applicant's commander recommended him for discharge by reason of misconduct - conviction by a civil court.  The commander stated the applicant was convicted of felony auto larceny and felonious breaking and entering a vehicle on 10 August 1981.  He was sentenced to imprisonment for 3 years in the custody of the North Carolina State Department of Corrections.

15.  On 6 August 1982, the administrative discharge proceedings for the applicant were reviewed for legal sufficiency.  A colonel in the Judge Advocate General's Corps determined the file was legally sufficient.

16.  On 18 August 1982, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.
17.  On 10 December 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - conviction by civil court.  He had completed 1 year, 4 months, and 10 days of active service that was characterized as under other than honorable conditions.  He had 1 year, 
2 months, and 7 days of time lost.

18.  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.

19.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and 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.  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 regulation.

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

2.  The applicant was processed for discharge due to his sentence to imprisonment by a civil court.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.
4.  The applicant was convicted in a civil court of three felony charges and sentenced to imprisonment for 3 years.  These charges were of such a serious nature that they do not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his conduct as a Soldier is considered unsatisfactory.

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)                                         AR20090020325



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ABCMR Record of Proceedings (cont)                                         AR20090020325



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