IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022852 


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 conditions discharge to an honorable discharge.

2.  The applicant states he was young and had sex with a 17-year old girl.  He thought she was 20.  He was 21 years of age at the time.  He goes on to state that he has lived a Christian life and he has received many awards in his job as a contractor for the Post Office and he needs his discharge upgraded in order to be employed by the Post Office.  He further states he also wants an honorable discharge for his children and grandchildren to see and have respect for him and the Army. 

3.  The applicant provides no additional documents with 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 was born on 27 November 1956 and he enlisted in the Regular Army on 4 November 1976 for a period of 3 years, training as a motor transport operator, and assignment to Alaska.

3.  He completed all of his training at Fort Dix, NJ and he was transferred to Alaska on 3 March 1977 for assignment to the 47th Engineer Battalion at Fort Wainwright.  He was advanced to the pay grade of E-3 on 1 October 1977.

4.  On 1 February 1979, the applicant was convicted by civil authorities upon his plea on “nolo contendere” to two charges of “Felony Contributing to the Delinquency of a Minor.”  He was sentenced to 1 year for each count but he was placed on probation for 1 year.

5.  On 7 February 1979, the applicant’s commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12, for misconduct - civil conviction.

6.  After consulting with defense counsel the applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  On 25 April 1979, the appropriate authority, a brigadier general, approved the applicant's recommendation for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  Accordingly, he was discharged on 8 May 1979 under the provisions of Army Regulation 635-200, chapter 14, due to conviction by civil authorities.  He had served 2 years, 5 months, and 29 days of total active service with 6 days of time lost time.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.
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.

12.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the narrative reason and separation code are appropriate under the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his misconduct and the absence of mitigating circumstances.  Additionally, the Board does not upgrade duly constituted discharges simply for the purpose of improving an individual’s employment prospects.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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)                                         AR20100022852



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ABCMR Record of Proceedings (cont)                                         AR20100022852



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