DOCKET NUMBER:  AR20120006971 


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 under other than honorable conditions discharge.

2.  The applicant states he is not saying the record is incorrect; he made a mistake and he knows he exercised poor judgment.  He had a good record in the military and he was toward the end of his military career.  He needs his character of service upgraded so he may better himself in life. 

3.  The applicant provides:

* Multiple DD Forms 214 (Certificate of Release or Discharge from Active Duty/Armed Forces of the United States Report of Separation or Discharge/Report of Separation from Active Duty)
* Multiple diplomas, certificates of training, participation, appreciation, and completion

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 initially enlisted in the Regular Army (RA) on 2 December 1970 and he held military occupational specialty 91B (Medical Specialist). 

3.  He served through multiple reenlistments in a variety of stateside and/or overseas assignments, including three tours in Germany, and he attained the rank/grade of staff sergeant/E-6.

4.  He completed various training courses and he was awarded or authorized the Army Service Ribbon, Army Good Conduct Medal (5th Award), Driver and Mechanic Badge, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon (2nd Award), and Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 7 October 1987, he was apprehended by civil authorities and taken to Dale County Jail, Ozark, Alabama, pending disposition of the charge of murder. On 11 August 1988, he was convicted of murder and sentenced to 45 years of imprisonment. 

6.  On 2 September 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for conviction by civil court.

7.  On 2 September 1988, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, if otherwise qualified.  He acknowledged he understood that:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge
8.  Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by civil court.  The immediate commander further recommended an under other than honorable conditions discharge.

9.  His chain of command, including his intermediate and senior commanders, recommended approval of the applicant’s discharge with an under other than honorable conditions discharge.

10.  On 19 December 1988, an administrative separation board convened at the Office of the Staff Judge Advocate, Fort Rucker, Alabama, with the applicant and his counsel present.  The administrative board found the applicant was convicted of murder in a civilian court, was sentenced to 45 years in an Alabama prison, and his duty performance had been inadequate.  The board recommended his separation with an under other than honorable conditions characterization of service.  

11.  Since the applicant was appealing his conviction at the time, his discharge could not be executed until the conviction was final or until his normal expiration of term of service.  The servicing legal office held his separation packet without approval or disapproval until his conviction was affirmed or his expiration of term of service (15 April 1990). 

12. The convening/separation authority approved the administrative separation board's findings and recommendations and ordered the execution of the applicant's discharge from the Army under the provisions of chapter 14 of Army Regulation 635-200 by reason of conviction by civil court be held in abeyance until the conviction was affirmed or until the expiration of his term of service. 

13.  The applicant submitted through his chain of command a request for an exception to policy for retention in the service pending the decision on his appeal of his civilian conviction.  Since he had completed over 18 years of service, approval of retention or discharge was only authorized by Headquarters, Department of the Army. 

14.  On 5 April 1990, Headquarters, Department of the Army approved the discharge with a characterization of service as under other than honorable conditions.  Accordingly, the applicant was discharged on 13 April 1990.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions.  This form further confirms that the applicant completed 19 years, 2 months, and 9 days of creditable active military service.
15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

	a.  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. 

	b.  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 evidence of record shows he was convicted by a civil court of murder, a serious offense, and he was sentenced to 45 years of imprisonment.  He appealed his conviction.  

2.  As required by applicable regulation, his chain of command initiated separation action against him.  An administrative separation board confirmed the misconduct and recommended his discharge with an under other than honorable conditions characterization of service.  

3.  The findings and recommendations of the administrative separation board were approved; however, since he was pending an appeal of his conviction, his discharge could not be executed until the conviction was final or his term of service expired.
4.  Additionally, since he had completed 18 years or more of creditable active service, approval of his discharge required a decision by Headquarters, Department of the Army.  This was done and he was ordered discharged.  

5.  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.

6.  His actions at the time clearly brought discredit upon himself and the Army.  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 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)                                         AR20120006971





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ABCMR Record of Proceedings (cont)                                         AR20120006971



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