IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120001535 


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 under other than honorable conditions so he can receive benefits from the Department of Veterans Affairs (VA).

2.  The applicant states he had applied for a hardship discharge due to family problems at the time of the incident.  He was going through depression and anxiety; he was out of control mentally.  The Army failed to recognize the situation which then went out of control.

3.  The applicant provides no additional evidence or official documentation in support of his 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 20 June 1979 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment (NJP) on:

* 13 November 1979, for stealing meals of a value of $23.50 on 14 occasions
* 14 December 1979, for failing to go at the time prescribed to his appointed place of duty

4.  On 27 March 1980, he pled guilty to attempted murder, amended to first degree wanton endangerment, in the Christian Circuit Court, Commonwealth of Kentucky.

5.  On 15 April 1980, the Christian Circuit Court, Commonwealth of Kentucky, sentenced him to 5 years of imprisonment.

6.  He submitted a statement wherein he stated he had been advised by counsel of the basis for the contemplated action to accomplish his separation for misconduct (conviction by civil court) under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations).  He also stated he:

* had been advised of his rights and the effect of waiving his rights
* requested consideration of his case by a board of officers
* waived a personal appearance before a board of officers
* was submitting statements in his own behalf
* requested representation by military counsel

7.  The applicant also acknowledged he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life as the result of issuance of a discharge under other than honorable conditions.

8.  In the statement he submitted, he stated he wanted very much to remain in the Army.  He had attended various schools, such as air assault, jungle expert, and weapons (tube-launched, optically-tracked, wire-guided and Dragon).  He won honor trainee and received a letter of recommendation from the post general.  He hoped through close consideration of his case that he would be one of the few to remain in the service.

9.  On 29 September 1980, his commander recommended his discharge due to his conviction by a civil court and the sentence to serve 5 years in the Kentucky State Reformatory.

10.  On 20 January 1981, a board of officers met to consider his separation from the Army.

	a.  The board found:

* he was convicted of an offense by civil authorities for which the maximum penalty under the Uniform Code of Military Justice is death or confinement for 1 year or more
* retention was not desirable because of the gravity of the offense involved

	b.  The board recommended his separation from the service and issuance of a discharge under other than honorable conditions.

11.  On 2 February 1981, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 6 February 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - conviction by civil court.  He completed 7 months and 3 days of net active service that was characterized as under other than honorable conditions.  He had 377 days of time lost.

13.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 28 October 1988, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  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 have been clearly inappropriate.  

	b.  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.  

	c.  Chapter 14 established policy and prescribed 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 was taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

15.  Title 38, Code of Federal Regulations, section 3.12(a), provides for an administrative determination by the VA that an "other than honorable conditions discharge" was issued "under conditions other than dishonorable" to establish basic eligibility for VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of his request for a hardship discharge in his Military Personnel Records Jacket.

2.  He was sentenced to 5 years of imprisonment by a civil court for first degree wanton endangerment.  Therefore, it was appropriate to process him for separation under the provisions of chapter 14 of Army Regulation 635-200 prior to the expiration of his term of service.

3.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  The charge that he pled guilty to was of such a serious nature that he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his conduct as a Soldier is considered unsatisfactory.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to either an honorable or general discharge.
6.  The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under conditions other than dishonorable for the purpose of VA benefits.  This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.

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 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)                                         AR20120001535



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ABCMR Record of Proceedings (cont)                                         AR20120001535



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