IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001321 


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 discharge.

2.  The applicant states he is a different person today than when he was a youth. 

3.  The applicant provides no additional documentation in support of this case.

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 (RA) on 30 September 1988.  He completed training and he was awarded military occupational specialty 31K (Combat Signaler).

3.  On 5 June 1992, the applicant was convicted in the 264th District Court of Bell County, TX for second degree attempt to commit murder.  He was sentenced to three years incarceration.

4.  On 12 February 1993, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5 for civilian conviction.  The reason cited by the commander was the applicant's conviction for second degree attempt to commit murder.

5.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant was advised that he could receive an under other than honorable conditions discharge and he was advised of all of his rights. The applicant requested counsel, requested a hearing by a board of officers, and did submit a statement in his own behalf.  His statement is unavailable.

6.  A DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)) shows the board was held on 8 April 1993 and the board members recommended the applicant be separated due to  conviction by a civil court and that he be given an under other than honorable conditions discharge.

7.  On 8 May 1993, the appropriate authority approved the recommendation and directed that the applicant receive an under other than honorable conditions discharge and that he be reduced to the pay grade of private (PVT)/E-1.  On      14 May 1993, he was discharged in the pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5, civilian conviction after completing 2 years, 10 months, and 2 days of active service with 652 days time lost due to civil confinement.

8.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-5 of the regulation provided, in pertinent part, that Soldiers convicted by civil authorities would be considered for separation.  An under other than honorable conditions discharge was normally considered appropriate.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  His military service records show he was charged and convicted of second degree attempt to commit murder.  The applicant had completed 2 years, 
10 months, and 2 days of creditable active service with 652 days of lost time due to confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20120001321





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ABCMR Record of Proceedings (cont)                                         AR20120001321



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