IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120009493 


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 served in the military between 1994 and 1997
* He was involved in an incident in November 1996 when he held a couple at gun point and took money from them
* He was young and immature at the time; he was imprisoned for 4 years as a result of his actions
* In June 2006, he was convicted of possession of cocaine; he was again imprisoned for 2 years and 10 months
* During his incarceration, he bettered himself and attended substance abuse programs
* He is still working on his own recovery and considers himself a "work in progress"
* He would like to use his education benefits to improve his life 

3.  The applicant provides two letters of support. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel requests the applicant's case be considered by the Board as the issues raised by him amply advance his contentions and substantially reflect the probative facts needed for an equitable review. 
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 was born on 5 April 1976 and enlisted in the Regular Army at 18 years of age on 12 August 1984.  He completed the training requirements and he was awarded military occupational specialty 13B (Cannon Crewmember). 

3.  His records show he was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The highest rank/grade he attained during his military service was specialist/E-4.  He was assigned to the 1st Battalion, 7th Artillery, Fort Drum, NY.

5.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  Orders 090-1006, issued by Headquarters, 10th Mountain Division (Light Infantry), Fort Drum, NY, on 31 March 1997, ordering his discharge from the Army on 2 April 1997 under the provisions of Army Regulation 635-200 (Personnel Separations). 

	b.  A duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 2 April 1997 under the provisions of Army Regulation 635-200, chapter 14-12c by reason of misconduct - commission of a serious offense with a character of service of under other than honorable conditions.  This form further shows he completed 2 years, 7 months, and 21 days of creditable active service.

6.  On 30 July 1999, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

7.  The applicant submitted:

	a.  A letter from a member of a temple/ministry who states he has known the applicant for 11 years as a fellow member of the temple.  He describes the applicant as an organized, efficient, and extremely competent individual.  He supports his referral to any individual or business. 

	b.  A letter, dated 16 March 2012, from his parole officer who states the applicant's good conduct qualified him for early release from prison.  He goes on to say the applicant had a chance to reassess his life while incarcerated and he now understands his criminal past and expresses remorse as well as growth and understanding. 

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

9.  Army Regulation 635-200, 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. 

10.  Army Regulation 635-200, 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 contends that his under other than honorable conditions discharge should be upgraded.
2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 2 April 1997 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense with a character of service of under other than honorable conditions. 

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.   

4.  The applicant was 18 years of age when he enlisted in the Regular Army and appears to have been between 19 and 20 years of age when he committed his serious offense.  However, there is no evidence in his records that shows he was any less mature than other Soldiers who successfully completed their service.

5.  The evidence of record shows the applicant’s discharge appears to have been appropriate based on his own admission of committing a serious offense (holding a couple at gun point and taking money from them).  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade of his discharge.  Therefore, there is insufficient evidence to support an upgrade of his discharge to a general or a fully honorable 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)                                         AR20120009493





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ABCMR Record of Proceedings (cont)                                         AR20120009493



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