IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009367 


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 general discharge to an honorable discharge.

2.  The applicant states he was young and did not have the wisdom to see or understand the consequences of his actions.  He did not realize what bearing this type of discharge would have on his future.  He states he completed his first enlistment period and reenlisted before he was discharged for stealing personal property from another Soldier.  Since his discharge, he has led a good life and has helped others and now asks the Board for another chance.  He concludes by saying he has been refused employment because of his type of discharge. 

3.  The applicant provides seven character reference letters and three certificates of training.

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 2 October 1985 at the age of 19 years, 6 months, and 15 days.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).  He served satisfactorily for 3 years and then reenlisted on 27 October 1988 at the age of 22.  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  During a summary court-martial on 14 May 1990 at the age of 24, the applicant was convicted of stealing an automatic teller machine (ATM) card from a Soldier and then using it to make two illegal financial withdrawals valued at $120.00 in cash.  The applicant was sentenced to forfeiture of $200.00 pay and reduction the rank/grade of private first class (PFC)/E-3.

4.  The applicant's official military personnel file (OMPF) shows he received two general counseling statements from his chain of command for missing work call formation and for larceny.  Accordingly, on 22 May 1990, he was counseled that administrative separation action would be initiated under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense.

5.  The applicant was found medically qualified for separation.  The applicant's DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, that he was mentally responsible, and that he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

6.  On 31 May 1990, the applicant's commander notified him that action was being initiated to separate him from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to commission of a serious offense. 

7.  The commander advised the applicant of his right to be represented by counsel, to request a hearing before an administrative separation board, to submit written statements in his own behalf, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant that the proposed separation action could result in an under other than honorable conditions discharge.

8.  Accordingly, the applicant consulted with counsel on 5 June 1990.  He waived consideration of his case by an administrative separation board and a personal appearance before said board.  He did not submit personal statements in his own behalf.  The applicant indicated that he understood that he could encounter extreme prejudice in civilian life with an under other than honorable conditions discharge.  He further indicated he understood that his separation under other than honorable conditions could deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a Veteran under both Federal and State laws.

9.  On 31 May 1990, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to misconduct - commission of a serious offense for larceny of personal property.  The commander recommended a general discharge.

10.  The applicant's battalion and brigade commander further concurred with the unit commander's discharge action and recommended approval with a general discharge.

11.  The approval authority subsequently waived the rehabilitative requirements and approved the applicant's discharge from the service with the issuance of a General Discharge Certificate.

12.  Accordingly, on 28 June 1990, the applicant was discharged.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with a general discharge.  He had completed 4 years, 8 months, and 27 days of creditable active service with no time lost.

13.  By unanimous vote, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge stating he was properly and equitably discharged.

14.  In support of his application, the applicant provided seven character reference letters with each letter stating he was a person of good moral character, a hard worker, caring, and kindhearted.  The letters also stated he was a devoted husband, father, and a church member in good stating since 1996.  With the character reference letters from his church, he also provided three certificates showing he had completed training in lay ministry programs.


15.  References:

	a.  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.

	b.  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.  Based on the evidence of record, the applicant's company commander initiated separation action against him after he was convicted by a summary court-martial for larceny of an ATM card and theft of money from the cardholder's account.

2.  The applicant contends that his discharge should be upgraded because he was young and immature, not knowing the full consequences of his actions.  This is not sufficiently mitigating since he had satisfactorily served his initial enlistment period and he was over 24 years old at the time of the offense that led to his discharge.

3.  Although an under other than honorable conditions discharge was normally issued to Soldiers discharged by reason of misconduct - commission of a serious offense, the applicant was discharged with a general discharge.  It appears that in considering his overall characterization of service, the successful completion of his initial enlistment was weighed, thereby warranting a general discharge by his chain of command and by the separation authority.

4.  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)                                         AR20100009367



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ABCMR Record of Proceedings (cont)                                         AR20100009367



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