IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000379 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states since his discharge he has been incarcerated for his crime.  He has now turned his life around.  He has begun an outreach ministry for people in nursing homes and prison.  He is a deacon in his church and now travels the world speaking as a motivational speaker.

3.  The applicant provides a copy of a letter from the Chief, Case Management Division, Army Review Boards Agency.

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 records show he enlisted in the Regular Army, in pay grade E-2, on 18 January 1978.  He completed training and he was awarded military occupational specialty 16S (Man-Portable Air Defense System (MANPADS) Crewman).

3.  He was honorably discharged on 21 October 1979, for the purpose of immediate reenlistment.  He reenlisted on 22 October 1979 for 6 years.  He served in Alaska from 9 December 1979 to 8 December 1982.  He was promoted to pay grade E-5 on 4 April 1982.

4.  On 19 November 1984, he was confined by civilian authorities pending charges for armed robbery.  He was convicted in March 1985 and placed in civilian confinement.  On 26 July 1985, his commander was notified of his confinement at the Kansas State Penitentiary.

5.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged in pay grade E-1 on 26 July 1985, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), chapter 14, section II, for civilian conviction.  His service was characterized as under other than honorable conditions.  He was credited with completing 6 years, 9 months, and 27 days of net active service.

6.  There is no evidence he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Section II specified a member could be considered for discharge when initially convicted by civil authorities.  Retention would be considered only in exceptionally meritorious cases when clearly in the best interest of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

8.  Army Regulation 635-200, paragraph 3-7b, provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.
DISCUSSION AND CONCLUSIONS:

1.  His contention that he has proven to be a productive member of society has been noted.  However, based on the available evidence, there is no basis for the upgrade of his discharge.  He has submitted neither probative evidence nor a convincing argument that he warrants an upgrade of his discharge 

2.  The evidence of record shows in November 1984 he was arrested by civil authorities and placed in confinement pending charges for armed robbery.  In March 1985, he was convicted and sentenced to confinement (amount of time not known). In accordance with regulatory guidance, he was discharged for misconduct, with an under other than honorable conditions discharge.  

3.  His misconduct diminished the quality of his service below that meriting a general discharge.  He has not provided evidence sufficient to mitigate his misconduct.  He also has not shown error, injustice, or inequity for the relief he now requests.

4.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process and it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100000379



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ABCMR Record of Proceedings (cont)                                         AR20100000379



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