BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110021437 


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 an upgrade of his discharge to honorable.

2.  He states, in effect, he is not implying that an error was made or that his discharge was an injustice.  He just took too long to mature and now he realizes the mistakes he made.  He loves his country, his health has changed for the worse, and he needs benefits from the Department of Veterans Affairs (VA).  He also wants his family and others to remember him as a veteran.    

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a training certificate
* medical records
* two 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 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 4 October 1982.  

3.  On 29 February 1984, the applicant's commander imposed a bar to reenlistment against him for having been apprehended by civil authorities for two counts of possession of a controlled substance and conviction of criminal negligent homicide.

4.  On 6 April 1984, the Parole and Probation Office, Board of Pardons and Paroles, State of Alabama, provided a certified copy of a Case Action Summary showing on 28 February 1984 the applicant pled guilty to criminal negligent homicide.  He was found guilty of the charge and sentenced to 12 months in a county jail.  The sentence was suspended pending a probation hearing.  

5.  On 11 April 1984, the Court Clerk, City of Daleville, Daleville, AL, provided a letter stating the applicant pled guilty to possession of marijuana and paraphernalia.  He was sentenced to pay fines and court costs.  

6.  On 16 April 1984, the applicant's commander informed the applicant he was being recommended for separation under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-5b, due to civil conviction for commission of criminal negligent homicide, and that the least favorable separation he could receive was under other than honorable conditions.  

7.  On 18 April 1984, the applicant was advised by counsel of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of his rights.  He waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if less than an honorable discharge (HD) was issued to him.

8.  On or about 19 April 1984, he submitted a statement requesting a GD as opposed to an "other than honorable discharge."  He attached five memoranda commending his duty performance.  In his statement, he addressed the charge of criminal negligent homicide by stating "the situation was accidental." 

9.  On 20 April 1984, his commander submitted the recommendation.  The intermediate authorities recommended approval.  
10.  On 24 May 1984, the separation authority's staff judge advocate found all procedural requirements had been met and there were no legal objections to directing separation.  The staff judge advocate recommended that the applicant be separated under other than honorable conditions due to the serious nature of the offense for which he was convicted.

11.  On 25 May 1984, the separation authority approved the recommendation to discharge the applicant and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 5 June 1984, he was discharged accordingly.  He completed 1 year, 6 months, and 25 days of net active service with 1 month and 3 days of time lost.

12.  He provides statements from two individuals who indicate they have known him 10 years.  Both individuals state, in effect, he demonstrates good morals and good work ethics.
 
13.  He provides a training certificate showing he completed a course entitled Effective Communication for Leaders in 2011.

14.  He provides medical records showing he was seen by a neurologist on 8 August 2011 for complaints of headaches, dizziness, falling, losing consciousness, and confusion.

15.  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 HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was convicted by civil authorities of criminal negligent homicide and possession of marijuana and paraphernalia.  Based on these convictions, he was properly recommended for separation from the Army.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.  

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

3.  His post-service conduct is an insufficient basis upon which to upgrade an under other than honorable conditions discharge that resulted from his convictions by civil authorities for serious offenses.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20110021437



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ABCMR Record of Proceedings (cont)                                         AR20110021437



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