IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110022452 


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows “civilian conviction,” which was bogus.  He further states he was speeding 15 miles over the speed limit and should have been issued a speeding ticket; however, the California Highway Patrol cited him for reckless driving.

3.  The applicant provides a copy of his DD Form 214.

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 record shows he enlisted in the Regular Army on 2 January 1986, and was trained in and awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  

3.  He was arrested by civil authorities in Monterey, CA on 30 January 1991, for driving under the influence (DUI) with a suspended license.  He was administered a breath test which revealed a blood alcohol content of .08.  He was later scheduled to appear in Monterey County Municipal Court.

4.  On 6 March 1991, he pled not guilty and later withdrew his non-guilty plea and pled guilty to the charge.  He was fined a monetary fine and the imposition of sentence was suspended for 3 years conditional upon him obeying all laws.  

5.  On 19 March 1991, he was issued an administrative Letter of Reprimand (LOR) for driving while intoxicated (DWI) on 30 January 1991.

6.  On 4 April 1991, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-5, by reason of conviction by civil court.  The commander cited the applicant's reckless driving and driving without a license as the basis for the action.  He also informed the applicant he intended to recommend issuance of an honorable discharge.

7.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected consideration of his case by an administrative separation board with representation by counsel.  However, he was ineligible to request for a board based on his years of service.  He elected to submit a statement in his behalf.

8.  He provided a one-page self-authorized letter to the commander which described his actions on 30 January 1991.  He expressed his opinion on the type of discharge he would receive which would make a difference in his career.

9.  On 15 April 1991, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, paragraph 14-5, due to civil conviction and directed he receive a GD.  On 25 April 1991, the applicant was discharged accordingly.  He completed a total of 5 years, 3 months, and 24 days of active military service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

12.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

13.  Paragraph 14-5 of the enlisted separations regulation provides for the separation of members who are subject to conviction by civil count.  It states a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present including if the sentence by civil authorities included confinement for 6 months or more, with no regard to suspension or probation.  

14.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues his DD Form 214 which indicated “civilian conviction” was bogus and that he should have been only issued a speeding ticket.  The evidence shows he was convicted by a civilian court for reckless driving and driving without a license.  He pled not guilty but later withdrew his plea and pled guilty to the charge.  He was given a suspended sentence of 3 years conditional upon him obeying all laws.  

2.  As a result, his command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected through the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation due to his conviction by civil court.

3.  His actions at the time clearly brought discredit upon himself and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20110022452



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ABCMR Record of Proceedings (cont)                                         AR20110022452



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