IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110016365 


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.  He requests a personal appearance before the Board.

2.  He states he had an unfair report by civilian authorities and was given no opportunity to speak to a military lawyer.

3.  He provides no additional documentary evidence in support of this 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.  He enlisted in the Regular Army on 11 March 1986.  He completed training and was awarded the military occupational specialty of 54E (nuclear, biological, and chemical) specialist.  The highest rank/grade he held was private/pay grade E-2.

3.  He accepted nonjudicial punishment (NJP) on 11 December 1986 for being absent from his place of duty on 3 December, 5 December, and 8 December 1986.

4.  A U.S. Army Armor Center Form 327, dated 7 May 1987, shows pursuant to his guilty plea he was convicted of burglary by the State Circuit Court of Calhoun County, Alabama.  He was sentenced to 2 years imprisonment in the Alabama State Prison with 110 days of pre-sentence jail credit.
 
5.  On 20 October 1987, his commander notified him that he was being considered for discharge from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-5, Section II (Conviction by Civil Court).  He was informed of his right to consult by correspondence with a consulting counsel. 

6.  On 20 October 1987, before a correctional officer and witness he acknowledged he did not intend to appeal the civil conviction.

   a.  He elected not to submit a statement on his own behalf and he waived consulting counsel. 

   b.  He acknowledged he understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he may expect to encounter substantial prejudice in civilian life if he were given a under other than honorable conditions discharge.
   
7.  On 13 November 1987, the separation authority approved his discharge under provisions of Army Regulation 635-200, paragraph 14-5, Section II, because of conviction by a civil court.  He directed the applicant be given an under other than honorable conditions discharge.

8.  On 20 November 1987, the applicant was discharged under provisions of Army Regulation 635-200, paragraph 14-5, Section II, because of conviction by a civil court, with his service characterized as under other than honorable conditions.  He completed 9 months and 19 days of net active service.  He had 325 days of time lost.

9.  On 6 March 1990, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.
10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation established policy and prescribed procedures for conditions that subjected a Soldier to discharge due to a conviction by a civil court.  A Soldier could be considered for discharge when initially convicted by civil authorities, or when action was taken that was tantamount to a finding of guilty if a punitive discharge was authorized for the same or a closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities included confinement for 6 months or more without regard to suspension or probation.  Initiation of separation action was not mandatory.  The immediate commander must have also considered whether the specific circumstances of the offense warranted separation.  A discharge under other than honorable conditions was normally considered appropriate.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  He has provided no evidence to support his contention he had an unfair report by civilian authorities.  He waived his right to representation by a military lawyer.  He accepted NJP for being absent from his place of duty on three occasions.  He was convicted in civil court of burglary and sentenced to 2 years in prison.  His records show he had 325 days of time lost.  This misconduct renders his service unsatisfactory. 

2.  He was processed for discharge based on his sentence by civil court to 2 years confinement.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

4.  In view of the foregoing, there is no basis to upgrade his discharge to an honorable or general discharge.

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)                                         AR20110016365



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ABCMR Record of Proceedings (cont)                                         AR20110016365



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