IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20100025402 


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 that his discharge under other than honorable conditions be upgraded.

2.  The applicant states he had 5 years of creditable meritorious service with only one mistake.  He was advised in 1989 that his discharge could not be upgraded and was only recently advised that he could request consideration by the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides no additional evidence.

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 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 13 September 1983, completed training, and was awarded military occupational specialty 71L (Administrative Specialist).  He was promoted to sergeant/E-5 on 1 May 1987.

3.  On 6 August 1988, the applicant was arrested by the Prince William County, Virginia, Sheriff's Office for felony murder of his 3-year old daughter and confined pending trial.

4.  On 9 February 1989 in accordance with his plea, the Circuit Court for Prince William County, Virginia, found the applicant guilty of murdering his daughter and sentenced him to 100 years in prison with 45 years of the sentence suspended.  The specifics of the charge and court case are not of record.

5.  On 6 April 1989, the applicant's command commenced separation processing under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-5, for misconduct – civilian conviction – commission of a serious offense.

6.  The applicant acknowledged receipt of the separation action notification and waived all of his administrative rights.

7.  On 27 April 1989, the discharge authority approved separation action and directed that the applicant be reduced to pay grade E-1 and discharged under other than honorable conditions under Army Regulation 635-200, chapter 14.

8.  The applicant was discharged on 11 May 1989 with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 10 months, and 27 days of creditable service with 279 days of lost time.  He was awarded the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, and Overseas Service Ribbon.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statutory limitation.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-7c provides that an under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he had 5 years of creditable meritorious service with only one mistake.  He was advised in 1989 that his discharge could not be upgraded and only recently advised that he could request consideration by the ABCMR.

2.  On 9 February 1989, the court found the applicant guilty of felony murder of his 3-year old daughter and sentenced him to 100 years in prison with 45 years of the sentence suspended.

3.  On 11 May 1989, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct – civilian conviction – commission of a serious offense.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he was discharged.

5.  The applicant's earlier good service is negated by the seriousness of the offense that led to his discharge.  Therefore, no relief is warranted.

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 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)                                         AR20100025402



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ABCMR Record of Proceedings (cont)                                         AR20100025402



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