IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120005908 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was told he would still get his benefits if he signed the discharge papers and a 2-year waiver.  He was deceived.  He was a great Soldier until he was harassed over his medical problems and his marital problems.  He also had accrued leave, but they would not give it to him.

3.  The applicant 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 enlisted in the Regular Army for 3 years on 6 January 1981 and he held military occupational specialty 11B (Infantryman).

3.  He served in Hawaii from April 1981 to April 1984.  His records show he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Army Service Ribbon, Army Good Conduct Medal, Overseas Service Ribbon, and Air Assault Badge.

4.  On 5 April 1985, he departed his unit without authority and was placed in an absent without leave (AWOL) status.  On 5 August 1985, he surrendered to civilian authorities after a warrant had been issued for his apprehension.  He appeared in civil court on 7 August 1985 for contempt of court and theft by deposition.

5.  On 13 September 1985, he pled guilty to the charge of theft; he was sentenced to a 1-year suspended sentence and he was placed on probation.  However, on 9 April 1986, he appeared in court for an admission of a probation violation; he was sentenced to a 6-month reinstated sentence with revocation of probation.  He was confined in Putnam County Jail, Greencastle, IN.

6.  On 16 April 1986, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of conviction by a civil court.  He recommended an under other than honorable conditions discharge.

7.  On 16 April 1986, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a discharge under other than honorable conditions, and of the procedures/rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.  He further stated he did not intend to appeal his civil conviction.

8.  He also acknowledged he understood he could encounter substantial prejudice in civilian life in the event that an undesirable discharge was issued to him.  He further acknowledged he understood that as a result of the issuance of an undesirable discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could encounter substantial prejudice in civilian life.

9.  On 29 April 1986, his immediate commander initiated separation action against him by reason of his civil conviction.

10.  On 2 May 1986, his intermediate and senior commanders recommended approval of the discharge with the issuance of an under other than honorable conditions character of service.

11.  On 27 May 1986, the separation authority approved the applicant's discharge under other than honorable conditions under the provisions of Army Regulation 635-200 for misconduct by reason of a civil conviction.  The applicant was accordingly discharged on 23 June 1986.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions character of service.  He completed a total of 4 years, 5 months, and 25 days of creditable active service and he accrued lost time from 5 August 1985 to 23 June 1986.

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct for 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority might approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  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.

	c.  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 was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of a civil conviction for theft.  He was initially sentenced to a suspended sentence and probation.  However, he violated his probation and was imprisoned.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and notified him of this action.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His actions at the time clearly brought discredit upon himself and the Army.  Additionally, his service was marred by misconduct as evidenced by a history of AWOL in addition to his serious civilian charges.  Based on his record of misconduct his service was unsatisfactory.  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 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)                                         AR20120005908



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ABCMR Record of Proceedings (cont)                                         AR20120005908



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