IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140002037 


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 under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states he was convicted of a misdemeanor theft in a civilian court in the State of Missouri in 1984 while stationed at Fort Leonard Wood, MO.  The conviction was pursuant to an incident in which he was an unknowing accomplice to his brother-in-law who stole a videocassette recorder (VCR) from a store.  The only disciplinary action he ever underwent while in the military was an Article 15 proceeding in Germany in 1980.

3.  The applicant provides no additional 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 8 March 1979.  On 7 April 1982, he was assigned to Headquarters Company, U.S. Army Training Center Engineer (USATCE) and Fort Leonard Wood, Fort Leonard Wood, MO.

3.  On 21 May 1982, he was apprehended by the military police (MP) for being intoxicated in public and disorderly conduct.  He was subsequently released to the control of his unit.

4.  On 26 October 1982, he was removed from the Primary Leadership Course (PLC), Fort Leonard Wood, for repeatedly failing to follow instructions, displaying an unfavorable attitude to his senior noncommissioned officer (NCO), and displaying a lack of motivation.

5.  On 6 July 1983, he was apprehended by the MPs for disorderly conduct and assault after becoming involved in a domestic altercation.  He was subsequently released to the control of his unit.

6.  On 19 July 1983, his immediate commander was notified the applicant had written a check to the Fort Leonard Wood Post Exchange that was returned for insufficient funds.  

7.  On an unknown date, he was arrested by civil authorities in St. Roberts, MO, and charged with larceny.

8.  On 24 August 1983, a Bar to Reenlistment Certificate was placed against him.  His immediate commander stated the action was initiated because he failed to demonstrate attributes that qualified him for additional responsibility.  He was pending civilian court action on charges of larceny, had previously been apprehended by the St. Roberts police for damaging private property, he failed PLC, and enclosed blotter reports indicated he was undisciplined and had a poor attitude toward personnel having authority over him.  

9.  On 5 October 1983, he pled guilty to and he was convicted by the Circuit Court of Pulaski County, MO, of the class-c felony charge of stealing without consent (emphasis added).  He was sentenced to 3 years probation.  

10.  On 23 January 1984, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for resisting arrest on 7 January 1984.

11.  On 31 January 1984, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct due to his civilian conviction.  His commander stated he was recommending the issuance of an under other than honorable conditions discharge.

12.  On 31 January 1984, the applicant acknowledged receipt of the commander's intent to initiate separation action against him.  On 1 February 1984, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment, the possible effects of this discharge, and the procedures and rights available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.

13.  In a statement he submitted on his own behalf, dated 1 February 1984, he stated he did not classify himself as a thief.  He had no past record of stealing and he pled guilty because he didn't like the idea of having to appear in court.  In addition, the court could have found him guilty and the results would have been a prison term for something he did not do.  He just happened to be with someone who was a thief. 

14.  His senior commander subsequently recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

15.  On 24 February 1984, the separation authority approved his discharge for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 6 March 1984, he was discharged accordingly.

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of civilian conviction with an under other than honorable conditions characterization of service.

17.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  Army Regulation 635-200, in effect at that 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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant committed a serious offense.  He was convicted by civil court for a felony charge of theft and he was sentenced to 3 years probation.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met. 

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Based on this record of misconduct, which also included two arrests by the MPs for disorderly conduct, removal from PLC for repeatedly failing to follow instructions, writing a bad check, and the NJP he received for resisting arrest, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140002037





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002037



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1