IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130012297 


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 be upgraded to an honorable discharge.  He further requests that his rank/grade at the time of separation be changed from private (PV1)/E-1 to at least sergeant (SGT)/E-5 based on the fact that he was a promotable SGT prior to being reduced and discharged.

2.  The applicant states that he never received a court-martial or punishment under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ).  He contends his discharge and drop in rank were based solely on a civilian conviction in 1983 for which he received a full pardon in 1990.

3.  The applicant provides a self-authored letter in support of his application.

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 10 June 1977.  The highest rank/grade the applicant attained while serving on active duty was SGT/E-5.

3.  On 23 March 1983, the applicant's battery commander issued him a Letter of Reprimand following his apprehension at Fort Polk, LA on 6 March 1983 for not abiding by the rules and regulations on a wildlife management area, possessing a loaded weapon in a vehicle, and hunting at night with a light and gun.  The commander stated his misconduct had brought discredit upon himself, and reflected adversely upon the unit and the United States Army.  The letter was imposed as an administrative measure and not as punishment under Article 15, UCMJ.  The letter was referred to the applicant for him to comment, but he elected not to submit a rebuttal.  He held the rank/grade of SGT/E-5 at the time of receiving this reprimand.

4.  A DA Form 4187 (Personnel Action), dated 16 May 1983, shows the applicant's duty status was changed from present for duty to confined to civil authority effective 14 May 1983 and charged with armed robbery.

5.  On 16 May 1983, the applicant's security clearance was suspended pending the completion of a civil investigation, arraignment and result of court action.

6.  On 17 May 1983, the applicant's battalion commander issued him a letter notifying him that he was disqualified from the Personnel Reliability Program.  This was a permanent action which prohibited him from performing tasks which are related to a nuclear duty position.  This disqualification was based upon his failure to maintain the established suitability standards.  The commander stated the applicant's recent conviction for hunting at night with a spotlight on post coupled with his current arrest for suspicion of armed robbery cast serious doubt on his reliability to perform nuclear duties.  These actions were in poor judgment, a contemptuous attitude toward the law, and were the basis for his disqualification.  The letter was referred to the applicant for him to comment, but his record is void of any indication that he elected to submit a rebuttal.

7.  A DA Form 4187, dated 25 May 1983, shows his duty status was changed from confined to civil authority to present for duty effective 24 May 1983.

8.  A DA Form 4187, dated 8 February 1984, shows the applicant's duty status was changed from present for duty to confined to civil authority effective 2 November 1983.



9.  Headquarters, 5th Infantry Division (Mechanized) and Fort Polk Orders 49-174, dated 12 March 1984, show the applicant was reduced in grade of rank from SGT/E-5 to PV1/E-1 effective 13 January 1984 under the authority of Army Regulation 600-200 (Enlisted Personnel Management), paragraph 8-3(a).

10.  A DA Form 751 (Telephone or Verbal Conversation Record), dated 15 May 1985, shows a representative of the 3rd Circuit of Appeals informed a representative of the Flag Records section that:

* the applicant was convicted of armed robbery and sentenced to 6 years at hard labor
* his case was heard in 3rd Circuit Court of Appeals on 18 March 1985
* on 10 April 1985, the sentence and findings were affirmed
* he had 30 days to appeal to the State Supreme Court
* the case was not appealed and is now final
* discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 can now be executed

11.  Item 27 (Remarks) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that on 14 May 1983 the applicant was arrested by civil authorities in Leesville, LA while on authorized pass and charged with armed robbery.  The applicant was convicted and sentenced to 6 years of confinement at hard labor.

12.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does contain a DD Form 214 (Certificate or Release or Discharge from Active Duty) that shows the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct.  This form also shows that he received an under other than honorable conditions characterization of service.
He was credited with time lost during the periods 14 May to 23 May 1983 and 2 November 1983 through 21 February 1984.

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

14.  The applicant provides a self-authored statement wherein he provides a synopsis of his service.  He specifically notes that he/his:

* graduated in the top 10% of his Primary Noncommissioned Officer Course class
* was promoted to SGT/E-5
* was awarded a Top Secret security clearance
* decided to be a career Soldier
* appeared before and passed the promotion board for advancement to staff sergeant (SSG)/E-6
* life changed when he went to a nightclub one evening and was arrested by civilian police the following morning
* was advised by an attorney that he could plead guilty, spend 6 months in military confinement, and receive a bad conduct discharge
* was innocent so, he opted to hire a civilian attorney to defend him
* passed a polygraph test, yet was still convicted and sentenced to 6 years
* received a full pardon from the governor of LA in 1990 and the charge was expunged from his record
* was only arrested once
* has led a very productive life since then as evidenced by the facts that he:

* built his own landscaping company
* co-founded a youth football league and cheerleader teams
* is licensed to teach automotive technology in TN
* ran for School Board and received the 2nd highest votes out of 5 candidates

15.  Paragraph 14-5 of Army Regulation 635-200, in effect at the time, provided that a Soldier may be considered for discharge when initially convicted by civil authorities or when action was taken tantamount to a finding of guilty if a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or the sentence adjudged by civil authorities included confinement of 6 months or more without regard to suspension or probation.  A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this provision.

16.  Army Regulation 600-200, paragraph 8-3(a), in effect at the time, provided that a Soldier convicted by a civil court will be reduced to the lowest enlisted grade, E-1, when their sentence includes death or confinement for 1 year or more which is not suspended.

17.  Army Regulation 635-200, 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.

18.  Army Regulation 635-200, 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Although the applicant contends that he was only arrested once in his life, evidence clearly shows that he was arrested at least twice.  He also contends he was granted a full pardon for his armed robbery conviction, but fails to provide any evidence in support of this contention.  In addition, a pardon does not overturn a conviction.

3.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does contain a DD Form 214 that identifies the reason and characterization of his discharge.  Therefore, government regularity in the discharge process is presumed.

4.  The evidence shows that he had a record of indiscipline and his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and subsequent conviction by a civil court also renders his service unsatisfactory.  Additionally, Army policy provided that a Soldier convicted by a civil court would be reduced to the lowest enlisted grade, E-1, when their sentence included confinement for 1 year or more which was not suspended.  Therefore, he is not entitled to restoration of his rank/grade or to have his discharge upgraded to either a general or an honorable discharge.

5.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  There is no indication of procedural errors which would have jeopardized his rights.  Further, the applicant's discharge accurately reflects his overall record of service.  Therefore, there is no basis for granting his request.







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)                                         AR20130012297





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ABCMR Record of Proceedings (cont)                                         AR20130012297



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