IN THE CASE OF:  

		BOARD DATE:  18 November 2014

		DOCKET NUMBER:  AR20140005971 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states, in effect:

	a.  He was discharged on 6 May 1988.  He was never notified of a discharge hearing, nor was he notified of his right to submit mitigating information that may have been effective in upgrading his service for a general discharge.  

	b.  At the time of discharge he was incarcerated.  He could have easily been located and contacted, but the Army made no effort to do so.  He had a due process right to notice and the opportunity to be heard.  These rights were not extended.  The UOTHC discharge was effected without his input.

	c.  His discharge was based on an isolated incident.  He was never notified of his discharge action.  He only learned of it when he requested his military records in September 2013.

3.  The applicant did not provide any supporting documentation.


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 June 1985.  He completed basic airborne training and the Ranger Indoctrination Program.  He held military occupational specialty 76Y (Unit Supply Specialist). 

3.  On 29 March 1986, he was apprehended by civil authorities and taken to the Pierce County Jail, Tacoma, Washington, pending trial.

4.  On 23 April 1987, he appeared in Pierce County Superior Court and pled guilty to first degree murder and first degree attempted murder and was sentenced to two concurrent terms of 65 years each.  He was confined at the Washington State Penitentiary, Walla Walla, Washington.

5.  On 2 November 1987, the applicant's immediate commander notified him of his intent to initiate separation action in accordance with Army Regulation 
635-200 (Personnel Separations) due to civil conviction for murder in the first degree and attempted murder in the first degree.  

6.  The applicant acknowledged receipt of the separation notification action and consulted with counsel.  He waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of no less than under honorable conditions.  He indicated he would not submit a statement on his own behalf and that he understood that if the separation authority refused to accept the conditional waiver of a hearing before an administrative separation board that his case would be referred to an administrative separation board and in that case he requested counsel.

7.  The applicant's intermediate commanders recommended approval of the discharge.

8.  On 25 February 1988, the separation authority directed a separation board be convened to determine whether the applicant should be eliminated from the service.

9.  On 1 March 1988, Captain (CPT) W------ was appointed to represent the applicant.

10.  On 11 March 1988, the applicant acknowledged receipt of a memorandum notifying him that a board of officers would conduct a hearing on 31 March 1988 to determine if he should be retained or if he should be separated because he was convicted of a serious offense by civil authorities.  The applicant was further informed that he was entitled to present evidence and call witnesses.

11.  On 31 March 1988, a board of officers convened at Fort Lewis, WA.  The applicant was represented by his counsel.  The board carefully considered the evidence before it and found the allegation of conviction by a civil court was supported by the evidence and recommended discharge and the issuance of a UOTHC discharge.  

12.  On 15 April 1988, 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 due to misconduct by reason of civil conviction and directed that he be given a UOTHC discharge. 

13.  On 6 May 1988, the applicant was discharged.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 with a UOTHC characterization of service.  He had completed 9 months and 7 days of active service and he had lost time from 29 March 1986 to 6 May 1988.  

14.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge. 

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included 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 UOTHC was normally appropriate for a Soldier discharged under this chapter.

	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 repeatedly contacted and properly afforded his rights.

2.  The evidence of record shows the applicant was convicted by a civilian court, in accordance with his pleas, of murder in the first degree and attempted murder in the first degree.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  A board of officers convened and found the applicant was undesirable for further military service because of his conviction by civil court and recommended discharge from the service with a UOTHC discharge. 

3.  The available evidence shows he was represented at the board of officer's hearing.  

4.  The evidence of record shows the applicant's administrative separation 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 reasons therefore were appropriate and equitable.

5.  In view of the foregoing, it is concluded that the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's overall quality of service was not satisfactory; 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)                                         AR20140001840



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ABCMR Record of Proceedings (cont)                                         AR20140005971



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