BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013342 


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 discharge under other than honorable conditions be upgraded to a general discharge.  He also requests correction of item 12h (Effective Date of Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he held the rank/pay grade of private (PV2)/E-2 with an effective date of 26 September 1991 at the time of discharge.

2.  The applicant states that he served on active duty for almost 3 years and never received any bad conduct write-ups.  He was under the impression that his discharge would be automatically upgraded 6 months after his separation.

3.  The applicant notes that item 33 (Date Prepared/Reviewed) and item 34 (Signature) of his DA Form 2-1 (Personnel Qualification Record - Part II) show the document was prepared on 29 March 1991 and reviewed on 23 July 1991.  He also notes that item 27 (Remarks) states that he was arrested on 13 August 1992.  He then asks if he signed the document before his arrest occurred.

4.  The applicant states that he was promoted to the rank/pay grade of PV2/E-2 on 26 September 1991, but item 12h of his DD Form 214 indicates that his effective date of pay grade was 12 November 1992.

5.  The applicant contends the record reflects that he was not absent without leave (AWOL) from 9 November 1991 to 8 September 1993 and that he had good conduct until his civil conviction on 13 August 1992.

6  The applicant provides:

* DA Form 2-1
* DD Form 214

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 26 March 1991 in the rank/pay grade of private (PV1)/E-1.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  Item 33 and item 34 of his DA Form 2-1 show the document was prepared on 29 March 1991 and reviewed on 23 July 1991.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows he was advanced to the rank of PV2/E-2 on 26 September 1991.

4.  His record contains several DA Forms 4856 (General Counseling Form) which show he received adverse counseling for:

* failure to communicate with his chain of command
* failure to be at his proper place of duty at the appointed time on four occasions
* failure to be in the proper uniform
* further acts of indiscipline could result in nonjudicial punishment under the provision of Article 15 of the Uniform Code for Military Justice (UCMJ)




5.  His record contains two DA Forms 4187 (Personnel Action) which show his duty status was changed in the following manner on the dates indicated:

* 9 November 1991, from present for duty (PDY) to AWOL
* 9 December 1991, from AWOL to dropped from the rolls (DFR)

6.  Item 21 (Time Lost) of his DA Form 2-1 shows that from 9 November 1991 through 8 September 1993 his duty status was a combination of AWOL and confined in the hands of civil authorities (CCA).

7.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, KY, Orders 82-3, dated 17 May 1993, show the applicant was apprehended by civil authorities on 13 August 1992 in Putnam County, FL for civilian charges of attempted robbery with a firearm, aggravated assault with a weapon, battery on a law enforcement officer, and resisting arrest with violence.  He was confined at the Putnam County Jail in Palatka, FL.  He appeared in the Putnam County Court and was sentenced to 3 years on 12 November 1993.  He was transferred to the Brevard Correctional Institution located in Sharpes, FL on 13 November 1992 and he was confined there to serve his sentence.  A synopsis of this information is also shown in item 27 of his DA Form 2-1.

8.  On 25 May 1993, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, section II, for conviction by civilian court.

9.  On 28 May 1993, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.
He waived his rights to have his case considered by an administrative separation board, to personally appear before a separation board, to submit statements in his own behalf, and for representation by counsel.

10.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, KY, Orders 101-7, dated 17 June 1993, show the applicant was reduced in rank/pay grade from PV2/E-2 to PV1/E-1 with an effective date of 12 November 1992 as a result of misconduct.

11.  On 18 June 1993, the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14, section II, due to conviction by civilian authorities for attempted armed robbery with a firearm or deadly weapon, aggravated assault, battery on a law enforcement officer, resisting arrest with violence, and carrying a concealed weapon.  He was sentenced to 2 years in confinement.  Paragraph "q" of this document shows the applicant was promoted to PV2/E-2 on 26 September 1991.  Paragraph "r" of this document shows the applicant was reduced to PV1/E-1 on 12 November 1992.  Paragraph "s" shows he had time lost from 9 November 1991 to present as a result of being AWOL and in a CCA status.

12.  On 15 July 1993, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14, due to civil conviction, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  The applicant's DD Form 214 shows he was discharged on 8 September 1993 under the provisions of chapter 14 of Army Regulation 635-200 by reason of conviction by civil court.  This form also shows he received an under other than honorable conditions characterization of service.  This form also shows in:

* Item 4a (Grade, Rate or Rank), his rank at the time of separation was PV1
* Item 4b (Pay Grade), his pay grade at the time of separation was E-1
* Item 12h (Effective Date of Pay Grade) was 12 November 1992

14.  The applicant's record is void of any evidence and he has not provided any evidence showing he was advised that his discharge would be automatically upgraded following the passage of any period of time.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

16.  Chapter 14, paragraph 14-5 of Army Regulation 635-200, in effect at the time, provided that a Soldier may be considered for discharge when initially convicted by civil authorities or when action was taken tantamount to a finding of guilty if a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or the sentence adjudged by civil authorities included confinement of 6 months or more without regard to suspension or probation.  A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this provision.

17.  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 applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his discharge would be automatically upgraded following the passage of time.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The evidence shows that he had a record of indiscipline and his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and subsequent conviction by a civil court also renders his service unsatisfactory.  Therefore, he is not entitled to have his discharge upgraded to a general discharge.

5.  The applicant's contention that he was advanced to the rank/pay grade of PV2/E-2 on 26 September 1991 is not disputed.  However, evidence clearly shows that he was subsequently reduced to PV1/E-1 on 12 November 1992 as a result of misconduct and this is the rank/pay grade that he held at the time of his discharge.  Therefore, he is not entitled to have his DD Form 214 corrected to reflect his advancement to PV2/E-2 on 26 September 1991.

6.  The applicant's concerns about the preparation and review dates shown on his DA Form 2-1 are duly noted.  At the time of his service a DA Form 2-1 was prepared for all Soldiers upon entry in the service and there was a requirement to review the form at least once per year.  Therefore, it is not unreasonable to presume that he reviewed and signed the document before his arrest occurred.




7.  The applicant's contention that his record reflects he was not AWOL from 9 November 1991 to 8 September 1993 is duly noted.  However, evidence clearly shows he was AWOL from 9 November 1991 until he was apprehended by civil authorities on 13 August 1992 and then CCA until he was discharged on 8 September 1993.  Therefore, the entire period is considered lost time.

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)                                         AR20140013342



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ABCMR Record of Proceedings (cont)                                         AR20140013342



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