IN THE CASE OF:	  

		BOARD DATE:  12 November 2013

		DOCKET NUMBER:  AR20130004483 


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 to a general discharge.

2.  The applicant states his discharge was inequitable because it was based on one "out of character" incident in an otherwise noteworthy 17-year military career.

	a.  On 26 June 1986, while on temporary duty at West Point, NY, he was involved in a career-ending incident that was the result of a major lack of judgment on his part.  After consuming beer, he was asked by some Soldiers to drive them to the Orange County Fair and he agreed.  While driving, he failed to see a stop sign at an intersection.  He drove into the intersection and struck another vehicle that was traversing the intersection.  He was taken to the police station and later informed that a passenger in the vehicle he struck had died.  He was arrested and placed in jail.  He was released from jail and returned to his unit at West Point.  He informed his company commander and first sergeant of his situation, a property accountability inventory and transfer was conducted, and he was returned to Fort Campbell, KY where he was processed for separation.

	b.  He acknowledges he made a very serious error in judgment and, although it was egregious in nature, it was an accident and not an intentional act that warranted termination of his military career.


	c.  He states he received numerous certificates and citations for meritorious service that are representative of his attitude, aptitude, and dedication to the Army over a prolonged period of time.  His evaluation reports and promotion pattern also support this fact.

	d.  He has accepted responsibility for his error in judgment and has lived with the shame of his actions since the day it happened.  He has also endured many sleepless nights and regret-filled days because of the death he caused to another human being.  He truly wishes there was some way he could go back and re-live that day and those moments.  He adds that he has long considered submitting this request and believes that he has served a suitable sentence and punishment.

	e.  The applicant concludes by stating that he desires a personal appearance hearing before the board.

3.  The applicant provides copies of his separation documents, five certificates, and three letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge.

2.  Counsel states, in effect, that he defers to the applicant.

3.  Counsel provides no additional documentary evidence in support of the applicant's request.

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 (RA) on 31 July 1969.  He was honorably released from active duty on 22 February 1972 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.  He competed 2 years, 6 months, and 3 days of total active service this period with 19 days of time lost.  His DD Form 214 for this period of service shows he was awarded or authorized the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Pistol Bar (.45 caliber)

3.  On 13 December 1974, he again enlisted in the RA.  He was honorably discharged on 14 September 1977 for the purpose of immediate reenlistment.  He completed 2 years, 9 months, and 2 days of net active service this period.

4.  A review of the applicant's record for this period of service shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for:

* operating a vehicle while drunk on 20 August 1975
* assaulting a Soldier by striking him with a fist on 5 January 1976

5.  On 15 September 1977, the applicant reenlisted in the RA for a period of 
6 years and reenlisted again on 5 August 1983.  He was promoted to sergeant first class (SFC)/E-7 on 20 January 1985 in military occupational specialty 63B (Light Wheeled Vehicle Mechanic).

6.  On 3 December 1986, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 14 (Misconduct), based on commission of a serious offense.  The reason for his proposed action was that on 10 November 1986, the applicant was convicted by the State of New York of negligent homicide and sentenced to serve no less than 
1 year and not more than 3 years in the State of New York Department of Corrections.

	a.  A DA Form 3997 (Military Police Desk Blotter), dated 29 June 1986, shows the initial charges against the applicant included driving while intoxicated, criminally negligent homicide, and vehicular manslaughter in the second degree.

	b.  The applicant was advised of his rights and the separation procedures involved.
7.  The applicant consulted with legal counsel and was advised of the rights available to him.

	a.  He requested consideration of his case by a board of officers.  He acknowledged he was in civilian confinement and requested the right to be represented by counsel at a board of officers.  He declined to obtain civilian counsel at his own expense.

	b.  He elected not to submit statements in his own behalf.

	c.  He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge or under other than honorable conditions discharge was issued to him.  He was also advised that, as a result of issuance of a discharge under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.

	d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service that was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	e.  The applicant placed his signature on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

9.  On 6 February 1987, a board of officers convened to consider whether the applicant should be discharged for misconduct.  The applicant requested appearance before the board in absentia because of his civil confinement and he was represented by counsel.  After considering the preponderance of evidence and owing to the severity of the offense, the board recommended the applicant be discharged because of misconduct with issuance of an under other than honorable conditions discharge.

10.  On 18 February 1987, the separation authority approved the recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, based on commission of a serious offense with an under other than honorable conditions discharge.  He also directed the applicant be reduced to private (PV1)/E-1.

11.  On 20 February 1987, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense, with an under other than honorable conditions discharge.  He completed 9 years and 18 days of net active service this period.  His DD Form 214 for this period shows in:

	a.  item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the:

* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Army Good Conduct Medal (3d Award)
* Army Commendation Medal (2nd Award)
* Army Achievement Medal
* Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2
* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

	b.  item 29 (Date of Time Lost During this Period) as continued in item 18 (Remarks) lime lost from 28 June 1986 through 2 July 1986 and 11 October 1986 through 20 February 1987.

12.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations.

13.  In support of his application the applicant provides:

	a.  A letter from First Sergeant Donnie S---, U.S. Army (Retired), dated 
25 January 2013, that shows he has known the applicant for 13 years and attests to his distinctive service in various assignments.  He adds that since the applicant's discharge he has worked tirelessly for needy veterans.  He recommends upgrade of the applicant's discharge.

	b.  A letter from Richard L. F---, dated 25 January 2013, that shows he has known the applicant since 1985 and they are close friends.  He states the applicant is good natured and always helpful.  He also attests to the applicant's personal reliability and contributions to community service.


	c.  A letter from David E. C----, dated 24 January 2013, that shows he has known the applicant for 15 years and they are very close friends.  He states the applicant has been a positive influence in community activities.  He also attests to the applicant's involvement in helping "wounded warriors."

	d.  Two Army Commendation Medal certificates, an Army Achievement Medal Certificate, and two Certificates of Achievement that substantiate the applicant's meritorious service in various positions during his military career.

14.  Army Regulation 635-200, in effect at the time, 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 commission of a serious offense (i.e., an offense which is subject to a punitive discharge if convicted by court-martial) and conviction by civil authorities.  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.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because it was based on one isolated incident during his 17 years of military service.

2.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were appropriate and equitable.

3.  Records show the applicant was serving as a senior NCO when he was involved in a drunk-driving incident that resulted in the death of another human being and he was convicted of criminally negligent homicide.

	a.  As a result, he was sentenced to serve no less than 1 year and not more than 3 years in a civilian confinement facility.  Thus, the applicant's character of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.

	b.  The evidence of record shows that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14.

	c.  The applicant's contentions regarding his 17-year military career and post-service achievements and conduct were considered.  However, after a thorough review and considering the reason for which he was discharged, his prior honorable service and post-service conduct provides an insufficient basis for upgrading his discharge, especially considering that this was not a single isolated incident.  The applicant had previously been punished for at least two other acts of misconduct, including an incident of drunk-driving.

4.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.


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)                                         AR20130004483



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ABCMR Record of Proceedings (cont)                                         AR20130004483



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