IN THE CASE OF: 

		BOARD DATE:	    1 May 2014

		DOCKET NUMBER:  AR20130016154 


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 his general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he does not drink or take drugs.  He has not had any felonies since his discharge from the Army.  He is raising two daughters as a single parent.  His children are his life.  He has set good standards on what he does.  He serves in his church.  He is a deacon and teaches Sunday school.  He enjoys what he does.  He knows that what he did in the military was wrong and has regretted it for a long time.  He cannot change the past but would like to get some of his dignity back.

3.  The applicant provides a letter of support from his pastor, dated 4 June 2013.

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 29 October 1979, the applicant enlisted in the Regular Army.  He completed his initial training as a cannon crewmember in 1980.  In 1983, he completed training as a communications systems/circuit controller.

3. On 1 February 1982, the applicant was advanced to specialist four, pay grade E-4.

4.  The applicant completed two tours of duty in the Federal Republic of Germany and a short tour of duty in the Republic of Korea.

5.   On or about 27 January 1992, the applicant accepted nonjudicial punishment (NJP) for:

	a.  stealing $994.60, the property of the United States Government;

	b.  preparing false and fraudulent forms and submitting them for approval and payment for dependent travel in the amount of $994.60;

	c.  having sexual intercourse with a woman not his wife; and

	d.  altering a public document by changing his dependent wife's name to another woman's name, who was not his dependent.

6.  On 29 January 1992, the applicant's company commander notified him that he was intending to take action to discharge him for commission of a serious offense based on his misconduct/criminal behavior as discussed above.

7.  The applicant consulted with counsel concerning his rights.  He elected not to submit a statement in his own behalf.  He requested consulting counsel.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

8.  On 5 February 1992, a mental status evaluation reported that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible and met medical fitness standards for retention.  He had the mental capacity to understand and participate in separation proceedings.

9.  On 10 February 1992, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, due to the commission of serious offenses, including falsifying an official statement, altering a public record, making and presenting a fraudulent claim, and committing larceny and adultery.

10.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.  Accordingly, on 27 February 1992, the applicant was discharged under honorable conditions.  He had completed 12 years, 3 months, and 28 days of creditable active duty service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 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 the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

	c.  Paragraph-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.

13.  Under the UCMJ, the maximum punishment allowed for larceny of Government property in excess of $500.00 is a punitive discharge and confinement for 10 years.



14.  The letter of support written by the applicant's pastor states the applicant is a member of the church congregation and is a deacon, ordained by the council of the Number One Union of the Union Foreign Missionary Baptist Association.  The pastor has known the applicant for 10 years and opines that he is an honorable man, a family man, and a very dedicated servant of God.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because he wants to get some of his dignity back.

2.  The record shows the applicant accepted NJP for the commission of serious offenses.

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 applicant's record of good service is greatly diminished by his commission of serious crimes for which he was fortunate to have only received NJP.  Accordingly, he has not provided any convincing evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

6.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate the seriousness of his criminal conduct.

7.  In view of the foregoing, 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 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)                                         AR20130016154





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ABCMR Record of Proceedings (cont)                                         AR20130016154



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