IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140001763 


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, in effect, that his discharge under other than honorable conditions be upgraded to a more favorable discharge that will qualify him for veteran’s benefits.

2.  The applicant states, in effect, that prior to his conviction by civil authorities, he was an outstanding Soldier and his record was spotless and he had no disciplinary actions taken against him.  Because of the characterization of his discharge he was unable to procure employment to make restitution as ordered by the court and was sent to prison for a year.  He has never attempted to have his discharge upgraded and desires to obtain veteran’s benefits.

3.  The applicant provides a two-page letter explaining 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 21 February 1978 for a period of 4 years and training as a wheel vehicle mechanic.  He completed his one-station unit training at Fort Dix, New Jersey and was transferred to Germany on 22 June 1978.

3.  He departed Germany on 18 June 1980 and was transferred to Fort Bragg, North Carolina for assignment to a maintenance company. 

4.  On 15 May 1981, the applicant was convicted by civil authorities of four counts of larceny.  He was sentenced to serve not less than 8 months confinement (suspended for 2 years) and a fine of $2,500.

5.  On 7 November 1981, the applicant was notified by his commander that action was being initiated to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, due to his conviction by civil authorities.  After consulting with defense counsel, the applicant waived his rights, elected not to submit a statement in his own behalf and indicated that he did not plan to appeal his conviction.

6.  The appropriate authority approved the recommendation for discharge on 
10 December 1981 and directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 
29 January 1982 under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – conviction by civil court.  He had served 3 years and 
7 months of active service with 159 days of time lost due to being absent without leave (AWOL) and confined by civil authorities.

8.  A review of his official records shows that the applicant was counseled for disobeying a lawful order, writing bad checks and failure to pay his just debts.  There is no record of nonjudicial punishment being imposed against him.

9.  The applicant applied to the Army Discharge Review Board (ADRB) on 
13 June 1983 for an upgrade of his discharge contending that he desired to 
re-join the Army and pay back what he owed the Army.  On 18 November 1983, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request. 


10.  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.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, conviction by civil authorities and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

	b.  Paragraph 3-7a provides des 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The characterization and the narrative reason for discharge were appropriate when considering all of the facts and circumstances in his case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when considering his involvement in repeated acts of misconduct which resulted in his conviction by civil authorities.   Additionally, discharges are not upgraded simply for the purpose of qualifying individuals for benefits. 

4.  Therefore, in the absence of evidence showing an error or injustice occurred in his case, there appears to be no basis for granting 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 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)                                         AR20140001763





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ABCMR Record of Proceedings (cont)                                         AR20140001763



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