IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140004070 


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 a general discharge.

2.  The applicant states he was discharged before he went to court on civil charges.

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 30 November 1977.  He completed training as an infantryman.

3.  The applicant's records show he accepted nonjudicial punishment (NJP) on four separate occasions between 16 November 1978 and 22 October 1979 for the following offenses:

* Purchasing $92.00 in exchange merchandise in excess of the prescribed limits of the applicable regulation
* Purchasing 14 ounces of cocoa, a controlled item, in excess of the prescribed limits of the applicable regulation
* Stealing $40.00, the property of another individual
* Resisting apprehension by an armed forces policeman
* Possession, with intent to deceive, of an armed forces liberty pass
* Purchasing $5.00 of cosmetics in excess of the prescribed limits of the applicable regulation
* Committing assault with a dangerous weapon likely to produce bodily harm

4.  On 14 January 1980, the applicant was convicted by a summary court-martial of failure to obey a lawful order by drinking alcoholic beverages while in correctional custody.

5.  On 28 January 1980, the applicant's status went from present for duty to confined by civil authorities.  His records show he was apprehended by the Killeen Police Department.  He was found guilty and he was sentenced to not less than 5 or more than 9 years for aggravated robbery.

6.  On 16 June 1980, the applicant was notified that he was being recommended for discharge due to misconduct – civil conviction.  He acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

7.  On 7 August 1980, the appropriate authority approved the recommendation for discharge for misconduct – conviction by civil authorities – under the provisions of Army Regulation 635-200, paragraph 14.  He directed the issuance of a discharge under other than honorable conditions.

8.  On 26 August 1980, the applicant was discharged accordingly.  He completed 2 years, 1 month, and 24 days of net active service this period.  

9.  There is no evidence the applicant ever petitioned 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 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious 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 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.

	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 contentions have been noted.  However, he has not shown error or injustice in the type of discharge he received.

2.  The evidence of record shows he accepted NJP on at least four separate occasions and was convicted by a summary court-martial as a result of his acts of misconduct.  He was convicted by civil court in January 1980; he was not discharged until August 1980.

3.  The type of discharge he received appropriately reflects his overall record of service.

4.  In view of the foregoing, his request should be denied.




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)                                         AR20140004070



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ABCMR Record of Proceedings (cont)                                         AR20140004070



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