BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008363 


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 general discharge under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he is a recent college graduate and needs his discharge upgraded to obtain employment in law enforcement.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, three letters of character reference, and his college transcript.

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 enlisted in the Regular Army on 13 October 1993.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty 67U (Medium Helicopter Repairer).  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  On 24 July 1994, the applicant was arrested by Clarksville, TN police and charged with burglary.  Records indicate that, in a sworn statement, the applicant admitted his involvement in the burglary.

4.  On 17 October 1994, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12(c), commission of a serious offense, due to being charged with burglary.  

5.  On 26 October 1994, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

6.  On 6 December 1994, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14-12(c), and directed that he be issued a general discharge under honorable conditions.  On 13 December 1994, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct, he completed a total of 1 year, 2 months, and 1 day of creditable active military service with no lost time.

7.  On 14 January 1997, the Army Discharge Review Board (ADRB) notified the applicant that he was properly and equitably discharged and denied his request to change the character of his discharge.  ADRB records show the applicant had a civil conviction in the file that was reviewed.  These documents are not available for review with this case.

8.  In a self-authored statement the applicant states, in effect, that:

* he fell into the wrong crowd and was discharged from the Army
* he now has a daughter and wants to better himself for both of them
* he was a roofer for about 7 years
* he completed an associate's degree in criminal justice and needs an honorable discharge to work in that field 

9.  Three letters of reference, provided by the applicant, state, in effect, he is a polite, conscientious individual, who recognizes his past indiscretions and has pursued an education in order to better himself.  
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 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. 

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this contention.

2.  The applicant's record includes evidence which shows he was charged and convicted by civil authorities for burglary.  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.  Therefore, he is not entitled to an honorable discharge.

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

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for employment opportunities.

5.  Although the applicant's post-service conduct has been noteworthy, it does not mitigate the fact that he was convicted of burglary during his military service.


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)                                         AR20100008363



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)