IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130006242 


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 a general discharge (under honorable conditions).

2.  The applicant states that at the time he was young but he since has been active in the community.

3.  The applicant provides a résumé of his employment history, a Certificate of Achievement from an outreach program, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 6 April 1979 for a period of 
3 years, training as a telecommunications center operator, and assignment to the 82nd Airborne Division at Fort Bragg, North Carolina.

3.  He completed his one-station unit training at Fort Gordon, Georgia and was transferred to Fort Benning, Georgia to undergo his airborne training prior to assignment to Fort Bragg.  

4.  He failed to complete his airborne training and was permanently administratively disqualified from further training.  He went absent without leave (AWOL) from 7 September to 20 September 1979 and on 25 September 1979 nonjudicial punishment was imposed against him for that absence.

5.  He again went AWOL from 9 October to 27 December 1979 and nonjudicial punishment was imposed against him for that absence on 24 January 1980.

6.  On 15 April 1980, he pled guilty in the District Court of Cumberland County, North Carolina to the crime of unauthorized use of a conveyance which is tantamount to a finding of guilty to larceny of a motor vehicle.  His sentence included a term of imprisonment for a period of not less than 6 months in the Cumberland County Jail and assignment to the State Department of Corrections for not more than 18 months.  The court, however, suspended the punishment and placed the applicant in a probationary status for a period of 2 years under the supervision of the North Carolina Department of Corrections.  The maximum punishment in the military for such an offense was a dishonorable discharge and confinement at hard labor for 2 years. 

7.  On 6 May 1980, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, due to his conviction by civil court.

8.  After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on    19 May 1980 and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged on 2 June 1980 under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to misconduct – conviction by civil court.  He had served 10 months and 26 days of active service and had 92 days of lost time due to AWOL.

11.  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.

12.  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 include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200 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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize 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 and supporting documents have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense and repeated absences during such a short period of service. His overall record of service simply did not rise to the level of a general discharge, under honorable conditions.

4.  Therefore, there appears to be no basis to grant his request for an upgrade of his discharge to a general, under honorable conditions.








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)                                         AR20130006242





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ABCMR Record of Proceedings (cont)                                         AR20130006242



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