IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130011369 


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 to honorable.

2.  The applicant states he was acquitted by the court-martial.  He was charged with a crime which he did not commit.  The general said he had lied under oath.  The post commander changed the findings of the court-martial and discharged him with a service characterization of general under honorable conditions.

3.  The applicant provides 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.  On 22 July 1981, the applicant enlisted in the Regular Army.  He attained the rank of staff sergeant/pay grade E-6 in 1987.

3.  On or about 16 April 1991, the applicant accepted nonjudicial punishment (NJP) for conspiring to steal merchandise from the post exchange valued at about $42.00 and for stealing assorted clothing and a camera from the post exchange valued at about $319.00.

4.  On 1 August 1991, an administrative elimination board convened in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for the purpose of determining whether the applicant should be separated from active duty.  The board proceedings state, in essence:

	a.  the applicant was retained in service because the board largely found his case circumstantial and he had already received NJP for his misconduct;

	b.  the applicant's command had not done it's homework and had failed to document his incidents of misconduct and poor performance;

	c.  the command had insufficient documentation concerning his removal from drill sergeant status, lacked counseling, lacked evidence of any remedial action taken, and showed a general pattern of reassigning the applicant rather than documenting incidents to support his elimination from the service; and

	d.  the board admonished the applicant, saying they looked at his evaluation and performance and found it to be marginal at best.  Unless he made a radical change, they saw no future for him in the Army.

5.  On 25 September 1991, the convening authority for the board discussed above disapproved the findings and recommendations.  He directed that the applicant be advised of the commander's intent to forward his case to the Secretary of the Army with a recommendation for his separation for the convenience of the government in accordance with Army Regulation 635-200, chapter 2, section III, paragraph 2-6e, and chapter 5, section III, paragraph 5-3.  The commander further stated he would consider all matters, to include any submitted by the applicant, before making a final decision whether to forward his case to the Department of the Army.

6.  In a memorandum, dated 9 October 1991, the applicant rebutted the commander's disapproval of the board proceedings.  In essence, the applicant stated:

	a.  he wanted to clarify matters and facilitate a transfer to another installation to enhance his military career;

	b.  he asked to receive the full benefit of the board's findings;

	c.  he contended the board's findings were wholly supported by the evidence presented and the board's decision was based on the government's failure to prove its case;

	d.  he considered the commander's decision to find the board's findings as erroneous to be highly inflammatory to the sanctity of the administrative elimination process;

	e.  he argued that a separation action under Army Regulation 635-200, paragraph 2-6e, must be based upon different criteria from that considered by the board of officers; and

	f.  he asked that the board proceedings be approved because second guessing their decision denied him his right to due process.

7.  In a memorandum, dated 6 November 1991, the commanding general requested the applicant's separation from the service under the regulatory provisions discussed above.  The basis for this request was the applicant's admission to stealing merchandise from the post exchange and his falsely-sworn testimony given before the board of officers.

8.  On or about 16 June 1992, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the requested separation and directed the applicant's discharge and issuance of a DD Form 257 (General Discharge Certificate).  He was to be assigned a separation processing code of JFF.  Also, he was to be eligible to receive separation pay and involuntary separation benefits.

9.  On 30 June 1992, the applicant was so discharged.  He completed a total of 10 years, 11 months, and 9 days of creditable active duty service.

10.  On 18 October 2000, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his characterization to honorable.  The ADRB determined that his discharge was both proper and equitable.  The ADRB denied his request.

11.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Paragraph 2-6e provides that when a board of officers has recommended retention and the separation authority believes that discharge is warranted and in the best interest of the Army, he may request discharge for the convenience of the Government in accordance with paragraph 5-3 of this regulation.

	b.  Paragraph 5-3 provides that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily it is used when no other provision of this regulation applies and early separation is clearly in the best interests of the Army.  Separation under this paragraph is effective only if approved in writing by the Secretary of the Army or his approved designee as announced in updated memorandums.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because he did not commit the crime for which he was charged.  However, he was not acquitted by a court-martial.  An administration separation board of officers determined the command had failed to properly and completely document the applicant's misconduct and poor performance resulting in the board voting to retain the applicant in the service. 

2.  The commander then exercised his authority by requesting the Secretary of the Army approve the applicant's early discharge based on his misconduct and poor performance.  His right to due process was not violated because he was afforded the opportunity to rebut the commander’s action.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The available evidence clearly shows the applicant was a marginal Soldier who conspired to steal merchandise from the post exchange.  He was caught and accepted NJP for his actions.


6.  In view of the above, there is no error or injustice.  Accordingly, the applicant's request should be denied.

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)                                         AR20130011369



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ABCMR Record of Proceedings (cont)                                         AR20130011369



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