IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100007225 


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 honorable.

2.  The applicant states he was a good paratrooper and studied hard to know not only our weapons, but also the weapons of our enemies.  He asks that it be understood that paratroopers stick together and that is what he was doing the night of 12 March 1977.  He was sticking up for a friend and he paid his debt.  He is sorry for his actions that evening and wishes he could take them back.

3.  The applicant provides no additional documentation in support of this 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.  The applicant enlisted in the Regular Army on 29 May 1976.  He completed his initial training and was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).

3.  He accepted nonjudicial punishment on 10 February 1978 for being absent without leave for 1 day.

4.  A DA Form 4187 (Personnel Action), dated 29 March 1978, shows the applicant's duty status changed from present for duty to confined by civil authorities effective 18 March 1978.  A second DA Form 4187 shows he was released from civil confinement on 4 May 1978 pending appearance before a civil court.

5.  A memorandum from the applicant's unit commander, dated 21 September 1978, reveals that on 17 March 1978 he was arrested by civil authorities for the charges of murder and felonious assault.  On 11 September 1978, he appeared before a civilian court and entered a plea of guilty to an amended charge of voluntary manslaughter and unlawful wounding.  He was sentenced to 5 years in prison.  Based on the above, the applicant's commander initiated separation proceedings under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for conviction by civil authorities.

6.  The applicant was advised by correspondence of the basis for the contemplated separation action and was advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14, for conviction by civil authorities.  He requested consideration of his case by an administrative separation board, but he elected not to submit a statement in his own behalf.

7.  On 19 December 1978, an administrative separation board convened and recommended the applicant be separated from the service with an under other than honorable conditions discharge.

8.  On 4 January 1979, the appropriate authority approved the separation and directed that the applicant receive an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 25 January 1975, he was discharged with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14.

10.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 29 May 1980.

11.  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 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.

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 because he was a good paratrooper.

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.  His record of indiscipline includes nonjudicial punishment and a conviction by civil authorities for voluntary manslaughter and unlawful wounding.

4.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  In view of the above, 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)                                         AR20100007225



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ABCMR Record of Proceedings (cont)                                         AR20100007225



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