IN THE CASE OF: 

		BOARD DATE:  12 September 2013

		DOCKET NUMBER:  AR20130002453 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states he does not dispute the reasons for his discharge.  Under the circumstances, it was fair and equitable.  He has made significant positive changes in his life and he had excellent service prior to the event that led to his discharge.  The event was an aberration and he truly believes that he has lived an honorable and decent life aside from that period.  He requests an upgrade of his discharge UOTHC based on his post-service conduct.

3.  The applicant provides:

* character-reference letter from Bishop F____ A. P____, President/Chief Executive Officer, Holiness Ministries Coalition, Incorporated, dated 24 January 2013
* Holiness Ministries Coalition, Incorporated, brochure titled, "Helping Young People Excel"
* children's book titled, "Little Tommy in Trouble – Choose Your Friends Wisely"

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 enlisted in the Regular Army on 7 September 1989.  He completed training and was awarded military occupational specialty 31U (Signal Support Systems Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service), he served in Germany and Kuwait;

	b.  item 9 (Awards, Decorations, and Campaigns), he was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon, Air Assault Badge, Southwest Asia Service Medal, Army Good Conduct Medal (1st Award), Noncommissioned Officer Professional Development Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars; and

	c.  item 18 (Appointments and Reductions), the highest rank/grade he attained was specialist/E-4.

4.  On 5 August 1997 while serving in the rank/grade of sergeant/E-5, his immediate commander notified him of his intent to initiate separation action against him for commission of a serious offense.  The commander stated the applicant committed the offenses of assault, kidnapping, burglary, and false imprisonment.

5.  On 7 August 1997, the applicant acknowledged receipt of the separation notification action and consulted with counsel.  He requested a hearing before an administrative separation board.  He also requested denial of the proposed separation because he had not been convicted of the alleged charges.

6.  The applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for misconduct – commission of a serious offense.  The applicant had been arrested in Colorado Springs, CO, for first degree burglary and false imprisonment.  The commander further recommended the applicant's receipt of a discharge UOTHC.

7.  On 26 August 1997, the applicant's battalion commander recommended approval of the applicant's separation with a discharge UOTHC.

8.  On 17 September 1997, the commanding general directed the appointment of an administrative separation board to determine whether the applicant should be discharged due to commission of a serious offense.

9.  The administrative separation board proceedings, dated 20 November 1997, show the board carefully considered the evidence before it and found there was sufficient evidence supporting a finding that the applicant did commit the serious offenses of kidnapping, assault, burglary, and false imprisonment.  Under direct examination, the applicant admitted to assaulting his girlfriend.  The board recommended his discharge UOTHC and his non-retention in the U.S. Army Reserve Individual Ready Reserve.

10. On 19 December 1997, the separation authority approved the applicant's discharge and directed he receive a UOTHC discharge.  On 6 January 1998, the applicant was accordingly discharged.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct with his service characterized as UOTHC.  He completed 7 years, 8 months, and 23 days of creditable active service.

12.  There is no available evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  In support of his request, the applicant provides:

	a.  a character-reference letter from Bishop F____ A. P____, President/Chief Executive Officer, Holiness Ministries Coalition, Incorporated, dated 24 January 2013, who states the applicant is working with the underserved youth of the community in the area of drug prevention and educating the youth to make better choices to avoid gangs.  He further states the applicant is an upstanding member of the Lamb of God Church as a deacon and adult Sunday school teacher.  His character reflects that of those with great leadership abilities who would be great assets in the communities in which they live, work, and worship;

	b.  a Holiness Ministries Coalition, Incorporated, brochure titled, "Helping Young People Excel"; and

	c.  a children's book titled, "Little Tommy in Trouble – Choose Your Friends Wisely," illustrated by himself.

14.  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 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 UOTHC is normally appropriate for a Soldier discharged under this chapter.

15.  Army Regulation 635-200, paragraph 3-7a, states 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.

16.  Army Regulation 635-200, paragraph 3-7b, states 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 the applicant committed a serious offense.  Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were presumably met and the rights of the applicant appear to have been fully protected throughout the separation process.

2.  The character-reference letter and other evidence provided by the applicant were noted.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20130002453



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