IN THE CASE OF:  


		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20140018424 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect:

* he was charged by civil authority with a misdemeanor crime, implying he was charged with a relatively minor offense not meriting discharge
* his superiors then unjustly forced him out of the Army

3.  The applicant provides no additional documentary 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 12 July 1977.  After completing One Station Unit Training, he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade held was specialist four/E-4.

3.  His official military personnel file contains a DA Form 4187 (Personnel Action), dated 12 November 1979, which shows the applicant's duty status changed from present for duty to confined - civilian authorities (CCA) effective 12 November 1979.  Another DA Form 4187 shows the applicant returning to a status of present for duty on 8 January 1980 with Section IV (Remarks) stating dismissed without trial.

4.  A DA Form 2496 (Disposition Form), dated 28 April 1980, reflects the applicant was considered for the award of the Army Good Conduct Medal.  His battalion commander disapproved him for the award based on two unspecified incidents, occurring in 1977 and 1978 as well as the fact he was, at the time, pending civilian charges for assault and other serious offenses. 

5.  On 15 August 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification of failing to go to his appointed place of duty.  

6.  A DA Form 4187, dated 5 September 1980, shows the applicant's duty status changed form present for duty to CCA effective 18 August 1980.  Section IV shows the applicant surrendered to a minimum security work farm to serve a 
6-month sentence.  He had been convicted of aggravated assault and assault with a deadly weapon (emphasis added).  A DA Form 4187, dated 12 November 1980, shows the applicant returning from CCA to a present for duty status effective 11 November 1980. 

7.  The applicant's discharge packet is not available for review.  There is, however, a DD Form 214 (Certificate of Release or Discharge from Active Duty).  His DD Form 214 shows:

	a.  He was discharged on 3 December 1980, under the provisions of chapter 14 (Separation for Misconduct), Section III (Conviction by Civil Court), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	b.  The characterization of service is under other than honorable conditions.  The narrative reason for separation is misconduct - conviction by civil court.

	c.  He completed a total of 3 years and 2 days of net active creditable service this period, with 143 days of lost time.

	d.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, Section III, in effect at the time, states members are subject to separation under this provision when they have been convicted by civil authorities or action is taken which is tantamount to a finding of guilty, for an offense having a maximum penalty, under the UCMJ, of death or confinement for 1 year or more.

	b.  The version of the regulation currently in effect states in:

* paragraph 3-7a that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance
* paragraph 3-7b 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

10.  The Manual for Courts-Martial provides the maximum punishment for offenses under the UCMJ.  Article 128 (Assault), includes both the offenses of aggravated assault and assault with a deadly weapon.  The maximum punishments are:

* aggravated assault in which grievous bodily harm is intentionally inflicted has a maximum punishment includes 10 years confinement
* aggravated assault with a dangerous weapon, if a loaded firearm, includes 8 years confinement; for other cases not involving a loaded firearm, it carries 3 years confinement

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable discharge be upgraded on the basis that, although he was convicted by a civil court, the charge was a misdemeanor, implying it was a minor offense.  His available record, however, contradicts what he contends.

	a.  His records contain a DA Form 4187 stating he was convicted by civil authority for aggravated assault and assault with a deadly weapon.

	b.  A discharge under the provisions of Section III, Army Regulation 635-200 requires the charge for which a Soldier is convicted carry a sentence of either death or confinement for 1 year or more.

	c.  Both offenses for which the applicant was convicted show maximum sentences that exceed 1 year in confinement.

2.  The applicant's discharge packet is not available for review.  Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time.  Absent evidence to the contrary, the Board presumes regularity and that actions taken by the Army are administratively correct.  Therefore, it is presumed that the requirements of law and regulations were adhered to and the rights of the applicant were fully protected throughout the separation process. 

3.  In view of the foregoing, there is insufficient evidence to support the relief requested.

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)                                         AR20140018424





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ABCMR Record of Proceedings (cont)                                         AR20140018424



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