IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100017771 


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 under other than honorable discharge to a general discharge. 

2.  The applicant states he was unjustly convicted of a civilian crime.  All odds were not in his favor and it was to protect his family or accept the punishment.  After 23 years of being silent he is trying to correct a wrong. 

3.  The applicant provides no documentary evidence in support of his 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 for a period of 4 years on            24 June 1976.  Records show the applicant was 19 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Infantryman).  The highest grade the applicant attained was staff sergeant/pay grade E-6.

3.  On 21 February 1980, the applicant was discharged for immediate reenlistment.  On 22 February 1980, the applicant reenlisted for 6 years for present duty assignment. 

4.  On 23 February 1982, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $100.00 pay and restriction for 7 days.

5.  On 26 July 1986, the applicant was placed in pre-trial confinement pending a special court-martial.

6.  On 30 July 1986, charges were preferred against the applicant for being absent without leave (AWOL) from 21 July 1986 to 26 July 1986 and from 0615 hours, 28 July 1986 to 2230 hours, 28 July 1986.  

7.  The applicant was released from pre-trial confinement and shortly thereafter he went AWOL again on 13 August 1986 and surrendered to the Salina Police Department on 20 August 1986 at which time he was arrested in Salina, KS for aggravated assault, two counts of kidnapping, and one count of habitually giving worthless checks.  

8.  On 29 September 1986, the applicant pled guilty and was found guilty of aggravated assault.  He was sentenced on 10 November 1986 to 2-5 years in prison.  Also on 29 September 1986, in a separate court case the applicant pled guilty and was found guilty of habitually giving a worthless check.  He was sentenced to 1-2 years in prison.  The sentence was to run concurrently with the prior case. 

9.  On 11 December 1986, the company commander attempted to notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, paragraph 14-5, for conviction by a civil court.  The company commander stated that the reason for his recommendation for elimination was the applicant’s conviction by a civil court.

10.  On 11 December 1986, the applicant refused to acknowledge receipt of the notification of separation action against him and failed to consult with legal representative.  However, the notification action was placed in the applicant’s personal property envelope at the Saline County Jail.

11.  On 16 March 1987, the appropriate authority approved the applicant’s separation under the provision Army Regulation 635-200, paragraph 14-5, and directed the issuance of an under other than honorable conditions discharge.  

12.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 April 1987 under the provisions of Army Regulation 635-200, chapter 14, for civilian conviction.  At the time, he had completed 10 years, 1 month, and 17 days of net active service this period 

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.

15.  Army Regulation 625-200, 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 under other than honorable conditions discharge should be upgraded to a general discharge because he was unjustly convicted of a civilian crime.  However, his plea of guilty to those charges acknowledged that he was charged fairly in his conviction of the charges.  

2.  The applicant’s administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case. 

3.  The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant a general discharge.  Therefore, the applicant is not entitled to a general 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)                                         AR20100017771





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ABCMR Record of Proceedings (cont)                                         AR20100017771



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