IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020736 


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

2.  The applicant states, in effect, that he served 4 years of quality service with one good discharge following his first term of service.  He contends that he only had one conviction.  In 2002, he entered Southern University in New Orleans, LA and obtained his bachelor's degree in 2007.  He is now a certified addiction counselor.  He is finding it difficult to obtain decent employment because of his discharge.  He asserts that he attended school for 5 years without a break with the exception of Katrina in 2005.  He states that he immediately enrolled in school the following semester because he did not want to waste the education money he received from the Department of Veterans Affairs.  He indicates that he wants to use his degree to help others.  He obtained a 3.2 grade point average.  

3.  The applicant provides a copy of his Associate of Arts in Substance Abuse, dated May 2005; and a copy of his Bachelor of Science in Substance Abuse, dated May 2007, from Southern University.

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 record shows he initially enlisted in the Delayed Entry Program (DEP) in the United States Army Reserve (USAR) on 2 April 1979 for a period of 6 years.  He later requested to be discharged from the DEP and enlisted in the Regular Army on 2 May 1979 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He later reenlisted on 24 February 1983 for a period of 3 years in pay grade E-5.

3.  On 3 October 1988, the applicant was counseled due to a civil conviction.  The applicant was convicted in a district court of obtaining merchandise and money by means of two or more false and bogus checks.  A civil court sentenced the applicant to serve 10 years in the custody of the Department of Corrections with 3 years served in confinement and 7 years suspended under supervision.  

4.  On 7 October 1988, the applicant’s immediate commander notified the applicant that separation action had been initiated against him in accordance with paragraph 14-12, Section II, of Army Regulation 635-200 (Enlisted Separations), due to conviction by a civil court and being absent without leave (AWOL).  The applicant subsequently acknowledged receipt of the separation notification.  He was advised of the basis for the contemplated separation action for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  The applicant waived his right to personally appear and for his case to be considered by a board of officers.  He elected not to make a statement on his own behalf.  He also waived his right for appointment of military or civilian counsel.  However, he elected to make a request for a conditional waiver.

5.  On 23 March 1989, the applicant appeared before a board of officers with counsel.  The board recommended that the applicant be separated due to misconduct as a result of a civil conviction and that he be issued an under other than honorable conditions discharge.  On 4 May 1989, the applicant declined a separation medical examination.  

6.  On 26 April 1989, the separation authority approved the board's recommendation to discharge of the applicant under the provisions of chapter 14, section II of Army Regulation 635-200, due to a civil conviction.  Accordingly, the applicant was discharged on 4 May 1989 in the rank of private pay grade E-1.  He was barred from the military installation, and he was not transferred to the Individual Ready Reserve (IRR) per the approval authority.  The applicant's 
DD Form 214 shows he was discharged with an under other than honorable conditions character of service.  His DD Form 214 further shows that he completed a total of 9 years, 4 months, and 10 days of net active service.  He completed a total of 4 years, 5 months and 29 days of foreign service and he had 234 days of lost time due to being AWOL and in civilian confinement. 

7.  On 4 May 1989, the applicant was issued a DD Form 215 (Correction to the DD Form 214) to change his narrative reason for discharge to "Misconduct."  

8.  The applicant applied to the Army Discharge Review Board (ADRB) in July 1994.  On 6 September 1994, the ADRB reviewed the applicant’s petition for an upgrade and found the applicant was properly and equitably discharged.  Accordingly, the ADRB denied the requested relief.    

9.  The applicant applied to appear before the ADRB in February 2000 and was approved.  However, after several failed attempts to contact the applicant both telephonically and in writing to schedule his personal appearance, the ADRB closed his case without prejudice. 

10.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

11.  Army Regulation 635-200, paragraph 3-7, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Army Regulation 635-200, paragraph 3-7, 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to a general discharge was carefully considered and found not to be supported by the evidence.

2.  On 23 March 1989, the applicant appeared before a board of officers with counsel.  The board recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 14, due to misconduct as a result of a civil conviction, and that he be issued an under other than honorable conditions discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Based on the applicant's civil conviction and 234 days lost time, the applicant is not entitled to 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)                                         AR20090020736



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ABCMR Record of Proceedings (cont)                                         AR20090020736



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