IN THE CASE OF:	 

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006465 


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 general discharge from the U.S. Army Reserve (USAR) to a fully honorable discharge.

2.  The applicant states he spent 10 years in the service.  If he had gotten out after 6 years, he would have received an honorable discharge.

3.  The applicant provides:

* 1979 USAR discharge orders
* General Discharge Certificate
* Letter of appreciation
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Two certificates of training
* Disposition Form, Subject: Recommendation for Award
* Letter orders of transfer between units
* Special orders awarding him the Parachutist Badge

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 records show he enlisted in the USAR for 6 years on 9 January 1968.  

3.  He entered active duty for training (ACDUTRA) on 28 June 1968 and completed the required training for award of military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from ACDUTRA on 26 October 1968 to the control of his Reserve unit.  

4.  He served through multiple extensions in a variety of staff and/or leadership assignments, and he completed various training courses, including the Reserve Component Special Forces Qualification Course, and he attained the rank/grade of sergeant first class (SFC)/E-7.  He was assigned as a platoon sergeant to Company C, 1st Battalion, 11th Special Forces Group, Pedricktown, NJ.

5.  On 28 October 1977, in Pennsylvania, he pled guilty to charges stemming from the theft and attempted sale to an undercover agent of 120 Colt firearms.  He was sentenced to 5 years probation. 

6.  On 23 June 1978, he was found guilty of unlawfully engaging in the business of dealing in firearms without being Federally licensed to do so and on 7 July 1978, he pled guilty to the charge of conspiracy involving the theft of 120 Colt firearms.  

7.  On 1 September 1978, elimination action was initiated against the applicant in accordance with Army Regulation 135-178 (Army National Guard (ARNG) and USAR - Enlisted Administrative Separations) by reason of civil conviction.  The chain of command, including the immediate, intermediate, and senior commanders, recommended a general discharge.

8.  The separation authority appears to have approved the request.  Accordingly, on 11 January 1979, Headquarters, First U.S. Army, Fort Meade, MD, published Orders 7-13 ordering the applicant discharged from the USAR with a general characterization of service. 


9.  Army Regulation 135-178 prescribes the policies, criteria, and procedures which apply to separation of enlisted members of the ARNG and the USAR.  

	a.  Chapter 1 states an honorable discharge is a separation from the United States Army with honor.  The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the member concerned.  It also states a general discharge is a separation from the United States Army under honorable conditions of an enlisted member whose military record is not sufficiently meritorious to warrant an honorable discharge. 

	b.  Chapter 7 prescribes the procedures for separation of enlisted members of the USAR for misconduct by reason of fraudulent entry, conviction by civil court, other disqualifying patterns or acts of conduct, and unsatisfactory participation of statutorily obligated members.  It states an enlisted member separated for reasons indicated above will normally be furnished a characterization of service of under other than honorable conditions.  However, if warranted by the circumstances of the case, a characterization of service of honorable or under honorable conditions may be furnished.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a civil court of theft and conspiracy to sell stolen firearms.  Accordingly, his chain of command initiated separation action against him due to his civil conviction.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s misconduct and diminished the quality of his service.

3.  Given his years of experience, his rank, and the type of assignment he had, his actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct his service could have been characterized as under other than honorable conditions.  It appears his commander considered his prior good service, but, he is not entitled to an upgrade of his discharge to fully honorable.




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)                                         AR20120006465





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ABCMR Record of Proceedings (cont)                                         AR20120006465



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