IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110017253 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that he was blamed for burglary by another officer’s significant other and was experiencing turmoil due to his mother’s failing health.  Based on these reasons and the Army’s inability to progressively assist him, the character of his discharge should be upgraded to honorable.

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 record show he enlisted in the Regular Army (RA), in pay grade E-1, on 1 August 1978.  He completed training and was awarded military occupational specialty 64C (Motor Transport Operator).  He was advanced to pay grade E-3 on 1 August 1979.

3.  On 23 July 1980, the applicant's company commander notified him that he was recommending action be taken to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Separation), paragraph 14-12a, for reasons of conviction by civil court.  

4.  On 24 July 1980, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he understood he could be issued an UOTHC discharge and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.

5.  In his statement, the applicant stated that on 9 February 1980, he was incarcerated in the Fairfax Detention Center, where he talked to his commander about his official status.  He no longer wished to serve in the Army, but he couldn’t see how or why he would be put out with a discharge that would put an even larger stain on his record and affect his job rating.  He must waive the board as he had an urgent family problem.  After being locked up for such a long period of time, he had lost respect for the military and just wanted to return home and try to start his life over.  His only request was consideration of his service record in determining the type of discharge he would receive.

6.  On 24 July 1980, the applicant’s company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12a, for reasons of conviction by civil court.  The company commander stated that the applicant was convicted of burglary in the Circuit Court of Fairfax County, VA, on 15 April 1980.  On 13 June 1980, the applicant was sentenced to serve 5 years in the penitentiary with 4 years of said sentence suspended.  

7.  On 28 and 29 July 1980, the applicant’s battalion and brigade commanders recommended approved of his discharge.

8.  On 30 July 1980, the applicant stated that he did not intend to appeal his civil conviction.

9.  On 1 August 1980, the separation authority approved the applicant’s discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an UOTHC discharge and reduction to pay grade E-1.
10.  He was discharged in pay grade E-1 on 7 August 1980, under the provisions of Army Regulation 635-200, chapter 14, for Misconduct-Conviction by Civil Court.  His service was characterized as UOTHC.  He was credited with completing 2 years and 7 days of net active service and time lost from 9 February to 8 July 1980.

11.  On 29 March 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating 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.  An UOTHC discharge was normally 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, specified an honorable discharge was a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, specified 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.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 15 April 1980 the applicant was convicted of burglary in the Circuit Court of Fairfax County, VA.  He was sentenced to 5 years, with 4 years of said sentence suspended.  On 24 July 1980, after consulting with counsel, he acknowledged receipt of his proposed separation for the Army for conviction by civil court.  He waived his rights, acknowledged he could be issued an UOTHC discharge, and stated that he did not intend to appeal his civil conviction.  The separation authority approved his separation action on 1 August 1980 and he was discharged accordingly.

2.  His contentions have been considered; however, he has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

3.  The evidence of record shows he was well aware of the reasons for his discharge at the time he was separated.  An UOTHC discharge was normally appropriate.  Based on the available evidence, there is no basis for the upgrade of his discharge.  He has submitted neither probative evidence nor a convincing argument that he warrants an upgrade of his discharge. 

4.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process and it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

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)                                         AR20110017253





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ABCMR Record of Proceedings (cont)                                         AR20110017253



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