IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019133 


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 would like to have his discharge upgraded because he has been a law-abiding citizen since his discharge and conducts himself today still as a Soldier.

3.  The applicant provides no supporting documentation.

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 served in the Regular Army from 26 August 1986 through 18 December 1990.
3.  General Court-Martial Order Number 24, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 3 July 1990, shows the applicant pled guilty to and was found guilty of obstruction of justice (concealment of a handgun used in a shooting), false swearing in a statement to criminal investigators, and making a false official statement to his commander.  On 23 April 1990, he was sentenced to a bad conduct discharge (BCD), confinement for 24 months, forfeiture of $300.00 pay per month for 24 months, and reduction to pay grade E-1.

4.  The general court-martial authority approved the sentence and directed the sentence to be executed except for the BCD and confinement in excess of
12 months which were suspended for 1 year contingent on the applicant not committing any acts of misconduct during the suspension, providing truthful testimony in all cases he was called to be a witness in, and performing his assigned military duties in an acceptable manner.  Unless vacated sooner, the suspended portions of the sentence were to be automatically remitted after
1 year.

5.  On 23 April 1990, the applicant was assigned to D Company, 2nd Battalion, U.S. Army Correctional Brigade, Fort Riley, KS, to serve his court-martial sentence of confinement for 12 months.

6.  On 27 November 1990, the applicant's commander initiated separation action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), paragraph 14-12c for misconduct - commission of a serious offense based on his general court-martial adjudged on 23 April 1990.  He recommended a general discharge.

7.  On 29 November 1990, the U.S. Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.

8.  On 29 November 1990, the applicant acknowledged the separation action and waived all administrative rights.  He also voluntarily waived consideration of his case by an administrative board contingent upon receiving a characterization of service no less favorable than under honorable conditions, otherwise referred to as a general discharge.  He also elected not to submit any statements in his own behalf.

9.  On 12 December 1990, the Brigade Staff Judge Advocate (SJA) reviewed the applicant's separation packet and found no legal objections.  The SJA further recommended a general discharge as the applicant's record had not been meritorious enough to warrant an honorable discharge, nor had it been so lacking in merit to warrant an under other than honorable conditions discharge.

10.  The discharge authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed the issuance of a General Discharge Certificate.  On 18 December 1990, the applicant was discharged accordingly.

11.  Army Regulation 635-200 (Personnel Separations) 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The firearm-related offense, for which a general court-martial found him guilty, is very serious and the applicant was initially to receive a BCD based on the guilty finding for this charge and the two lesser charges.  Both the general court-martial convening authority and the discharge authority granted the applicant significant leniency in allowing him to attempt to redeem himself and not pursuing the punitive discharge.

2.  The applicant has not provided any verifiable evidence that his post-service conduct is so meritorious as to outweigh the offenses for which he was court-martialed and discharged.  Additionally, the ABCMR does not upgrade discharges based solely on the passage of time or post-service conduct or accomplishments.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100019133



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ABCMR Record of Proceedings (cont)                                         AR20100019133



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