BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120009184
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 to an honorable or a general discharge.
2. The applicant states he did nothing wrong.
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 applicants 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 applicants 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 Army on 8 June 1977. He completed training as a cannon crewman.
3. On 23 November 1977, the applicant accepted nonjudicial punishment (NJP) for stealing a ski mask from the area exchange.
4. He accepted NJP on 10 March 1978 for being absent without leave from 1 March until 6 March 1978.
5. On 2 June 1978, the applicant was notified that he was being recommended for discharge for robbery in the second degree, which resulted in a civil conviction. He acknowledged receipt of the notification on 28 June 1978. After consulting with counsel, he elected not to submit a statement in his own behalf.
6. The appropriate authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.
7. On 1 August 1978, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulations 635-200, chapter 14-12a, for misconduct conviction by civil authorities. His DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 17 days of total active service.
8. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
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's contentions have been noted. However, he was issued a discharge that reflects his overall record of service.
2. His contention that he did nothing wrong is completely without merit. His records show he was convicted by a civil court of robbery in the second degree. Considering the nature of his offenses, it does not appear the type of discharge he received is too harsh.
3. The applicant did not serve honorably and a discharge under other than honorable conditions appropriately reflects his overall record of service.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20120009184
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ABCMR Record of Proceedings (cont) AR20120009184
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