IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002999


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 to an honorable discharge.

2.  The applicant states:

* while he was enlisted he served his country in both peace and time of war with enthusiasm and sincerity
* the service he rendered to his country was not under other than honorable conditions and remains the pinnacle of all his life's accomplishments
* he desires to have his discharge reflect his love for both his country and society

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from Goodwill Industries of the Inland Northwest
* Victims Awareness Certificate of Completion
* Stress/Anger Management Certificate of Completion
* Moral Reconation Therapy Certificate of Completion
* Parenting Certificate of Completion
* Whitworth College Bachelor of Arts Degree

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 on 17 July 1990.  He completed training as a cannon crewmember.

3.  On 22 June 1992, the applicant was convicted pursuant to his plea by a civil court of second degree murder of his spouse.  He was sentenced to 123 months [10 years and 3 months] of confinement.

4.  On 3 September 1992, the applicant was notified he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-5a, for misconduct – conviction by civil authorities.  He acknowledged receipt of the notification.  After consulting with counsel, he waived his right to submit a statement in his own behalf.

5.  The appropriate authority approved the recommendation for discharge on 23 November 1992 and directed the issuance of a discharge under other than honorable conditions.

6.  On 11 December 1992, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-5a, for misconduct – conviction by civil authorities.  He completed 1 year, 5 months, and 13 days of net active service this period.

7.  The available record does not show the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

8.  The applicant submits a letter from his supervisor at Goodwill Industries of the Inland Northwest who attests to the applicant's character and conduct during the time he has been employed.  He submits Certificates of Completion for Victim Awareness, Stress/Anger Management, Moral Reconation Therapy, and Parenting attesting to his post-service conduct.  He also submits a certificate showing he earned a Bachelor of Arts Degree from Whitworth College.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

	b.  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.

	c.  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 contentions have been noted and his post-service conduct has been considered.  His post-service conduct is not sufficiently mitigating to warrant the requested relief.

2.  His records show he was a member of the U.S. Army when he was convicted by civil authorities of second degree murder of his wife.  He was discharged under the provisions of Army Regulation 635-200, paragraph 14-5a, for misconduct – conviction by civil authorities.  Under the applicable regulation, his discharge under other than honorable conditions was and still is appropriate.

3.  In view of the foregoing, his request should be denied.

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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20110002999



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