IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012089 


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 his general discharge be upgraded to an honorable discharge.

2.  He states his discharge was inequitable because it was based on one isolated incident in which he did not take part.  

3.  He 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 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’s military records show he enlisted in the Regular Army, in pay grade E-1, on 20 January 1988, for 4 years.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).  He served in Germany from 5 May 1988 to 14 May 1990.  He was advanced to pay grade E-2 on 20 August 1988.

3.  He was reduced to pay grade E-1 on 25 May 1989 (reason unknown).

4.  A DA Form 3881 (Summary of Action), dated 20 November 1989, stated the applicant had stolen an undetermined number of leather jackets from the Main Exchange and had then taken the jackets back to the unit area where he would sell them to Soldiers within the unit.  He was advised of his rights for the offenses of conspiracy to commit larceny and larceny.  He invoked his rights and requested legal counsel.  The action was referred to the Office of the Provost Marshal for action deemed appropriate.

5.  A Report of Mental Status Evaluation, dated 11 April 1990, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented, his mood or affect was unremarkable, his thinking process clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  

6.  On 24 April 1990, the applicant’s unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-12(c), Commission of Serious Offenses, with a general discharge.  The unit commander stated the reasons were the applicant’s involvement in a series of offenses involving conspiracy, larceny, and robbery.  He also stated that the applicant’s offenses had made him a threat to that’s unit ability to complete its mission and could not be tolerated.  He advised the applicant of his rights.

7.  On 25 April 1990, after consulting with counsel, the applicant acknowledged the proposed separation action.  He acknowledged he understood the basis for the contemplated separation action.  He also acknowledged the effects of the issuance of a general discharge and the rights available to him.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 30 April 1990, the applicant’s battalion commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c), with a general discharge.

9.  On 1 May 1990, the appropriate separation authority directed the applicant be discharge under the provisions of Army Regulation 635-200, paragraph 14-12(c) with a general discharge.  The separation authority stated a rehabilitative transfer of the applicant would:

* create serious disciplinary problems or hazards to the military mission or the Soldier
* be inappropriate because the Soldier was resisting rehabilitation attempts
* rehabilitation would not be in the best interest of the Army as it would not product a quality Soldier

10.  He was discharged from active duty in pay grade E-1 on 14 May 1990, under the provisions of Army Regulation 635-200, paragraph 14-12(c), for Misconduct – Commission of a Serious Offense, with a general discharge.  He was credited with completion of 2 years, 3 months, and 25 days of net active service.

11.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic policy for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating enlisted members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an investigation revealed the applicant had stolen an undetermined number of leather jackets from the Main Exchange and had then taken the jackets back to the unit area where he sold them to Soldiers within the unit.  The separation authority stated that the applicant created serious disciplinary problems or hazards to the military mission, was resisting rehabilitation attempts, and rehabilitation would not be in the best interest of the Army as it would not product a quality Soldier.

2.  There is no evidence of record and he provided none to show he was innocent of the offenses.  When advised of the offenses he invoked his rights to counsel.  Upon notification of his separation he acknowledged, after consulting with counsel, he understood the basis for the contemplated separation action and its effect and waived his rights, and he elected not to make a statement.

3.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

4.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable and he now warrants a fully honorable discharge.  He was properly separated for misconduct, commission of a serious offense.

5.  In the absence of evidence to the contrary it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

6.  In view of the circumstances in this case, he was appropriately discharged and he has not shown otherwise.  

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)                                         AR20110012089





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012089



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1