IN THE CASE OF

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130019559 


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 honorable.

2.  The applicant states:

	a.  while stationed at Fort Hood, TX he was convicted of false imprisonment and served 11 months in civilian confinement from October 1981 to September 1982.
 
	b.  he has not been in any trouble with the law since then.

	c.  he has two honorable discharges and the highest rank he attained was staff sergeant.	

3.  The applicant provides no additional documentary evidence.

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 19 July 1972 for a period of 
3 years.  He was honorably discharged on 21 July 1974 for immediate reenlistment.  He reenlisted on 22 July 1974 for a period of 4 years.  On 9 May 1978, he was honorably discharged for immediate reenlistment.  He reenlisted on 10 May 1978 for a period of 4 years.  He trained as a tactical communications system operator mechanic and radio teletype operator.  He attained the rank of staff sergeant on 30 May 1978.

3.  Records show:

	a.  in March 1981, he was convicted in civilian court of kidnapping and he received a sentence of up to five years of confinement.

	b.  in August 1981, a bar to reenlistment was imposed against him.

	c.  he was placed in civil confinement on 19 February 1982.

4.  His record is void of the specific facts and circumstances surrounding his discharge action.

5.  On 15 September 1982, the separation authority approved the discharge of the applicant under the provisions of Army Regulation 635-200 ((Personnel Separations – Enlisted Personnel), chapter 14, for misconduct (conviction by civilian authorities).  He directed the issuance of a discharge under other than honorable conditions.

6.  On 24 September 1982, the applicant was discharged accordingly.  He completed a total of 9 years, 7 months, and 11 days of creditable active service with 218 days of lost time. 

7.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.




8.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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 or is otherwise so meritorious that any other characterization would be clearly 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 applicant contends he has not been in any trouble since his discharge.  However, good post-service conduct alone is not a basis for upgrading a discharge.

2.  His remaining contentions were carefully considered.  However, in the absence of evidence to the contrary it must be presumed his separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  Therefore, there is an insufficient evidentiary basis for granting the applicant an honorable or 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 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)                                         AR20130019559





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ABCMR Record of Proceedings (cont)                                         AR20130019559



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