IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140002334 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he was discharged for a crime he did not commit and for which he was not found guilty.  The doors of the barracks were chained and the gang infestation was ignored even though he was ordered to watch his fellow Soldier’s back when off duty.

3.  The applicant provides a hand-written letter explaining his application and a copy of 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 was serving in the U.S. Army Reserve as a wire systems installer when he enlisted in the Regular Army on 20 June 1989 for a period of 3 years and assignment to Europe.

3.  He was transferred to Germany on 3 July 1989 and served there until           13 November 1991, when he was transferred to Fort Huachuca, Arizona.

4.  On 1 May 1992, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense based on his being arrested by civil authorities on 29 March 1992 for attempted murder.

5.  After consulting with counsel the applicant submitted a statement in his own behalf whereas he asserted that he was being unjustly charged with attempted murder and while he was present, he did not pull the trigger!  He requested that he be given an honorable discharge so he could receive his education benefits.

6.  On 15 May 1992, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

7.  Accordingly, he was discharged under honorable conditions on 20 May 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He had served 2 years, 
10 months, and 16 days of total active service and had 45 days of lost time due to being in civil confinement.

8.  A review of information contained on the Arizona Department of Corrections website reveals that the applicant was convicted of armed robbery and sentenced to 23 years imprisonment and murder (1st degree) and sentenced to life.  It also reveals that he appealed his convictions in 1994 and his appeal was denied.

9.  A review of his official records failed to show that he has applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s     15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation discusses reasons for separation including expiration of service obligation, convenience of the government, retirement and numerous other reasons.

	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, 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 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.

DISCUSSION AND CONCLUSIONS:

1.  Based on a review of the available evidence, it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  Accordingly, the reason for his discharge and the characterization of his service were appropriate for the circumstances of his case.

2.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offenses.  The applicant's overall service simply does not rise to the level of a fully honorable discharge.

3.  Inasmuch as he was properly discharged for misconduct in accordance with the applicable regulations and since there is no evidence to show otherwise, there is no basis for upgrading his discharge to an honorable discharge.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20140002334



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ABCMR Record of Proceedings (cont)                                         AR20140002334



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