BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130000085 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that while stationed in Germany he was falsely accused and convicted of attempted murder.  He goes on to state that had he been tried under the Uniform Code of Military Justice (UCMJ) or in a U.S. Civil Court of Law, the case would have been dismissed because the victim identified another person in a line-up and no "DNA" evidence was found on the victim or at the scene of the crime. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), documents related to a police line-up and documents related to an Article 32 investigation. 

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, though somewhat incomplete, show that he enlisted in the Regular Army on 14 October 1986. He completed his one-station unit training as a motor transport operator at Fort Leonard Wood, Missouri and was transferred to Germany. 

3.  On 4 December 1987, an investigation was conducted under Article 32b of the UCMJ to investigate the court-martial charges against the applicant.  The results of the investigation are not present in the available records.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Ohio.  However, by the applicant’s own admission, he was convicted by German civil authorities of attempted murder and his records contain a duly authenticated DD Form 214 which shows that he was discharged under other than honorable conditions on 29 October 1991 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to civil conviction.  He had served 5 years, 8 months, and 
16 days of active service.

5.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, conviction by civil authorities and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

	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 also 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.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense and his otherwise undistinguished record of service.  Accordingly, the applicant’s overall record of service simply does not rise to the level of a general or 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)                                         AR20130000085



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ABCMR Record of Proceedings (cont)                                         AR20130000085



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