IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001840 


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 under other than honorable conditions discharge.

2.  The applicant states his civil conviction occurred on his time, not the Army's time.  The conviction occurred when he was 17 years of age.  He had already been punished by the State court.  This happened over 30 years ago.  He volunteered for the Army when he was 17 years of age at the height of the Iranian crisis in 1979.  He is a patriot who loves our country.  The Army abandoned him and should now correct the error.

3.  The applicant provides 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.  The applicant's records show he was born in February 1963 and he enlisted in the Regular Army at 17 years and 1 month of age on 3 April 1980.  He was assigned to Fort Polk, LA. 

3.  On 8 June 1980, he was apprehended by Military Police for shoplifting merchandise from the Post Exchange.  As a result, his exchange privileges were suspended. 

4.  On 14 June 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing property from the Post Exchange. 

5.  On 31 August 1980, he was arrested by civilian police and confined in DeRidder, LA for armed robbery.  He was ultimately convicted by the civil court on 24 October 1980 and sentenced to 20 years in confinement.  He was confined at the Beauregard Parish Jail. 

6.  On 23 January 1981, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations) for civil conviction.  The immediate commander recommended an under other than honorable conditions discharge. 

7.  On 6 February 1981, the applicant's intermediate commander recommended approval due to the nature and seriousness of the offense.  He opined the applicant's retention would be detrimental to the discipline and morale of the unit and would not be in the best interests of the United States Army. 

8.  On 10 March 1981, the applicant's senior commander also recommended approval of the discharge action.   

9.  On 30 March 1981, the applicant acknowledged receipt of the separation notification.  He later consulted with counsel and he was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an under other than honorable conditions discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and appearance before a board of officers.  He elected not to submit a statement on his own behalf and indicated he did not intend to appeal his conviction.  He further acknowledged he understood that:
	a.  He could encounter substantial prejudice in civilian life in the event an under other than honorable conditions discharge was issued to him. 

	b.  As a result of the issuance of an under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

10.  On 30 April 1981, a board of officers convened at Fort Polk, LA.  The applicant was represented by his counsel.  The board carefully considered the evidence before it and found the applicant was convicted of armed robbery on 24 October 1980, after trial in the Thirty-Sixth Judicial District Court of Louisiana, an offense punishable by a year or more confinement under the UCMJ.  The board found the applicant was undesirable for further retention in the military service because of his conviction by civil court and recommended discharge and the issuance of an under other than honorable conditions discharge. 

11.  On 15 May 1981, the convening/separation authority approved the board of officers' findings and recommendations and ordered the applicant discharged under the provisions of Army Regulation 635-200 for misconduct by reason of civil conviction and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  

12.  Since the applicant was appealing his conviction at the time, his discharge could not be executed until the conviction was final.  On 5 April 1982, the applicant's conviction for armed robbery was affirmed by the Louisiana Supreme Court.  

13.  On 1 June 1982, the applicant was discharged from active duty.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200 with an under other than honorable conditions characterization of service.  He was issued an Under Other Than Honorable Conditions Discharge Certificate.  He completed 4 months and
28 days of active service (during the period under review) and he had lost time from 31 August 1980 to 1 June 1982.  

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

	a.  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. 

	b.  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 evidence of record shows the applicant was convicted by a civilian court of armed robbery.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  He requested consideration of his case by a board of officers.  Accordingly, a board of officers convened and found the applicant was undesirable for further military service because of his conviction by civil court and recommended his discharge from the service with an under other than honorable conditions discharge. 

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant was 17 years and 6 months of age when he committed his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.  The applicant's actions brought discredit to the Army and the Nation. 

5.  The passage of time does not erase what the applicant did during his military service.  Furthermore, the Army does not now nor did it ever have a policy wherein a characterization of service is changed due to the passage of time. 

6.  The reason for the applicant's discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140001840



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ABCMR Record of Proceedings (cont)                                         AR20140001840



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