IN THE CASE OF:  

		BOARD DATE:  10 February 2015    

		DOCKET NUMBER:  AR20140009788 


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 an honorable discharge (HD) or a general discharge (GD).  

2.  He states:

	a.  During the summer of 1993 while serving at Fort Jackson, SC, he and two other Soldiers found themselves in a precarious situation.  As it was the weekend and they were off duty, they traveled off base and into a civilian setting.  They were approached by a large group of civilians who initiated a verbal confrontation.  The civilians became physically aggressive and they were forced to defend themselves.  Due to the fact that there was no State self-defense law in effect at the time, all parties were arrested and charged.  He was charged with assault and battery "with a high and aggravated nature."  Because this took place in a civilian setting, they were detained in a civilian facility.

	b.  At no time was he allowed to consult with military officials.  This was a grave injustice.  He was extremely disappointed and felt abandoned by the military he loved so much.  With the exception of this isolated, non-military-related incident, his career and record were exemplary.  He received numerous awards, and he was a noncommissioned officer (NCO) who was considered a model Soldier. 

	c.  This occurred over 20 years ago, and he has not been in any more trouble.  He remained and continues to be a productive member of society.  He is a husband and father, and he is a proud Army veteran.  He wants his children to be able to say this about him with certainty.  He is remorseful that the incident happened, and his is humbled and thankful that he had the opportunity to serve.  

3.  He provides a self-authored statement; a letter from the Case Management Division, Army Review Boards Agency; and a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States).

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.  On 1 September 1988, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 75B (Personnel Administration Specialist).  On 23 March 1992, he reenlisted.  Effective 1 August 1992, he was promoted to sergeant/pay grade E-5.  

3.  His NCO Evaluation Report (NCOER) for the period ending February 1993 shows he received one "Excellence" and four "Success" ratings from his rater.  His rater marked the "Fully Capable" box for overall potential for promotion and/or service in positions of greater responsibility.  His senior rater rated his overall performance as "Successful" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior."  

4.  A DA Form 4187 (Personnel Action) shows his duty status was changed from present for duty to civilian confinement effective 7 June 1993.  

5.  His NCOER for the period ending October 1993 shows:

	a.  His rater marked the "NO" block for "Maintains a high standard of personal conduct on and off duty" and "Has the courage of convictions and the ability to overcome fear – stands up for what's right" and entered the following comments:

* Involved in a serious incident off duty
* Not able to understand the right thing to do from the wrong thing to do

	b.  His rater gave him "Needs Improvement (Some)" ratings for leadership and responsibility and accountability.  

	c.  His rater marked the "Marginal" box for overall potential for promotion and/or service in positions of greater responsibility.  

6.  The complete facts and circumstances of his civil conviction and discharge processing are not contained in the available records.  However, his records do include a letter, dated 24 February 1994, from the Commander, Headquarters, U.S. Army Personnel Control Facility (PCF), U.S. Army Armor Center and Fort Knox, Fort Knox, KY, informing him he had been assigned to the PCF for discharge.  The letter shows he was to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of conviction by civilian authorities.  He indicated he did not intend to appeal his civilian conviction.  

7.  On 29 April 1994, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 14, for misconduct, and his service was characterized as UOTHC.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows he had completed 4 years, 9 months, and 6 days of net active service this period with time lost from 7 June 1993 through 29 April 1994.  The DD Form 214 also shows he was awarded or authorized the:

* Army Achievement Medal (5th Award)
* Army Good Conduct Medal
* National Defense Service Medal
* NCO Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Driver and Mechanic Badge with Driver "W" Bar

8.  Army Regulation 635-200 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 appropriate for a Soldier discharged under this chapter.  

	b.  Paragraph 3-7a provides that an HD 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 GD 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 available evidence does not support the applicant's request for an upgrade of his UOTHC discharge to an HD or a GD.

2.  His statement that 20 years have passed and he has not been in any more trouble is noted.  The passage of time and post-service conduct are not normally a sufficient basis for changing a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The complete facts and circumstances of his discharge processing are not available; however, the available evidence does show that he was convicted of an offense by civil authorities and did not intend to appeal the conviction.  His civil conviction was a basis for discharging him under the provisions of Army Regulation 635-200, chapter 14, and a UOTHC discharge was normally appropriate for a Soldier discharged for this reason.  In the absence of evidence showing otherwise, it must be presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  The awards he had received and his rank were facts that would have been readily available to the separation authority.  Notwithstanding those facts, the separation authority determined his service would be characterized as UOTHC.  The available evidence does not show error, injustice, or inequity in the separation authority's decision.  As such, there is an insufficient basis upon which to upgrade his UOTHC discharge to an HD or a GD.  

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)                                         AR20140009982



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ABCMR Record of Proceedings (cont)                                         AR20140009788



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