IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130006547 


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 to an honorable discharge.

2.  The applicant states he worked in the same unit for 3 years doing the same duties after this conviction in civil court.

3.  The applicant provides copies of his 1976 DD Form 214 (Report of Separation from Active Duty), 1993 submission of post-hearing matters memorandum, and 1994 Notification of Eligibility for Retired Pay at Age 60.

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 20 June 1973.  He completed training and was awarded military occupational specialty 95C (correctional specialist).  He was honorably released from active duty in pay grade E-5 on 18 June 1976 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  He entered active duty as a member of the U.S. Army Reserve on 13 June 1983.  He served in a variety of assignments and attained the rank of sergeant first class.

4.  On 11 June 1992, he pled guilty in civilian court to one count of conspiracy to defraud the U.S. Government.  He was ordered to pay any fines/restitution ordered by the court and sentenced to 6 months of confinement at a Community Corrections Center and 3 years of probation.

5.  In February 1993, the applicant's company commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraphs 14-5 and 14-12c, based on his civil court conviction and for commission of a serious offense.  The company commander recommended his discharge under honorable than honorable conditions.  He advised the applicant of his rights.

6.  After consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a discharge under other than honorable conditions and the results of the receipt of such a discharge.  He requested to have his case heard by a board of officers.

7.  In March 1993, the applicant's battalion commander and commanding general recommended the applicant's discharge under other than honorable conditions due to his conviction by a civil court.

8.  On 22 April 1993, a bar to reenlistment was imposed against the applicant.

9.  On 8 July 1993, a board of officers determined the findings warranted separation and recommended the applicant's separation and issuance of a discharge under other than honorable conditions.

10.  The applicant provided a copy of a memorandum submitted on his behalf by his trial counsel, dated 28 July 1993, subject:  Submission of Post-Hearing Matters, requesting approval of a suspended separation or, in the alternative, approval of an honorable discharge.

11.  On 13 August 1993, the separation authority approved his discharge and directed his reduction to pay grade E-1 and the issuance of a discharge under other than honorable conditions.

12.  He was discharged accordingly in pay grade E-1 on 21 September 1993 under the provisions of Army Regulation 635-200, chapter 14, by reason of a civilian conviction.  He was credited with completing 13 years, 3 months, and 8 days of total active service and 6 years, 11 months, and 24 days of prior inactive service.  His service was characterized as under other than honorable conditions.

13.  On 4 February 1994, he was issued of Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct because of a conviction by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, a sergeant first class, was convicted by a civil court of conspiracy to commit fraud.  After his civilian confinement he was notified by his company commander of his intention to separate him from the Army for this conviction by civilian authorities under the provisions of Army Regulation 635-200, chapter 14, and that he could receive a discharge under other than honorable conditions.  A board of officers determined the findings warranted his separation under other than honorable conditions.  The separation authority approved the recommendation and he was discharged on 21 September 1993.

2.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

3.  His contentions have been noted; however, he has not shown his discharge was unjust or in error.  He provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general 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 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)                                         AR20130006547



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ABCMR Record of Proceedings (cont)                                         AR20130006547



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