BOARD DATE: 30 June 2011
DOCKET NUMBER: AR20100028900
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 a general discharge.
2. He states his life has changed since leaving the military and he is attempting to become a more stable citizen.
3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and five supporting statements.
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 applicants 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 applicants 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 19 September 1975.
3. On 1 April 1977, he was reprimanded by his company commander for resisting being lawfully apprehended by an Armed Forces policeman.
4. On 4 January 1977, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice for leaving his appointed place of duty without authority on 28 December 1976.
5. On 20 June 1978, the applicant was apprehended by civilian authorities and placed in confinement pending prosecution by a civil court. As a result, he was convicted and sentenced to extended confinement in a State prison.
6. On 15 May 1979, the company commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for conviction by a civil court.
7. On 29 May 1979, having consulted with counsel and being advised of the basis for the contemplated separation action, its effects and the rights available to him, he requested consideration of his case by a board of officers, to personally appear before a board of officers, and to be represented by counsel.
8. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him. He further understood that, as a result of issuance of an undesirable discharge under conditions other than honorable, that he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.
9. On 5 June 1979, the company commander recommended the applicant be administratively eliminated from the service under the provisions of Army Regulation 635-200, chapter 14 for a civil conviction. He stated that elimination was recommended because the applicant was convicted by civil court for an extended prison term.
10. On 19 July 1979, a board of officers was convened to determine whether or not the applicant should be retained in the service or discharged under the provisions of Army Regulation 635-200, chapter 14, because of a civilian conviction. The applicant appeared before the board with counsel. After
carefully considering the evidence, the board found that the applicant was undesirable for further retention in the military service because of conviction by a
civil court. The board recommended his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of conviction by civil court with an Under Other Than Honorable Conditions Discharge Certificate.
11. On 27 August 1979, the separation authority approved the recommendation of the board. He directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14 because of a civil conviction with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.
12. His DD Form 214 shows he was discharged on 20 February 1980 under the provisions of Army Regulation 635-200, chapter 14, for misconduct - conviction by civil court with a characterization of service of under other than honorable conditions. He completed 2 years, 8 months, and 21 days of creditable active service with time lost from 20 June 1978 to 20 February 1980.
13. The applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge. On 30 April 1993, the ADRB denied his request for a discharge upgrade. The ADRB determined that his discharge was both proper and equitably.
14. The five supporting statements submitted by the applicant speak highly of his character. The authors acknowledged that he was a faithful member of the church and served as a musician. One author stated the applicant constantly demonstrated his faithfulness and he was always willing to help others whether through his music or just giving his time.
15. 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.
16. 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.
17. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he has changed his life around and he is attempting to become a more stable citizen since his military service was carefully considered. However, good post-service conduct alone is not a basis for upgrading his discharge.
2. Evidence of record shows he appeared with counsel before a board of officers and the board found he was undesirable for further retention in the military service because of his conviction by a civil court. His entire record of service was considered. There is no record or documentary evidence of acts of valor or service that would warrant special recognition.
3. Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct renders his service unsatisfactory. Therefore, he is not entitled to a general or an honorable discharge.
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) AR20100028900
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