IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150000658 


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 to have his general discharge under honorable conditions upgraded to an honorable discharge.

2.  The applicant states:

* his discharge should be upgraded to an honorable discharge because the Army abandoned him in the State facility
* he had no lawyer, no GI Bill, no help, and now no respect
* he was not represented by the Army
* he was a Soldier, but was not helped
* his GI Bill was taken away after he worked for it
* he served honorably and wants his record to reflect that 
* he loves his country
* he finds himself at 41 years of age and with kids who are approaching the age of consideration for the Army
* he wants them to experience what he had and not be ashamed of receiving a general discharge under honorable conditions discharge
* it matters to him and he considers this unfinished business 

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 4 August 1992.

3.  The applicant's records contain:

	a.  an indictment and allied documents, dated 8 November 1993, which state he was charged with armed robbery and possession of a firearm during the commission of a crime.  On 7 February 1994, he pled guilty to one count only.

	b.  a DA Form 4833 (Commander’s Report of Disciplinary or Administration Action), dated 21 March 1994, which shows he was charged with armed robbery and sentenced to serve 5 years in confinement and probation for 5 years.

4.  On 16 May 1994, he 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), paragraph 14-5, due to misconduct (civil conviction).

5.  On 17 May 1994:

	a.  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.

	b.  the applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-5 due to his civil court conviction were tantamount to a finding of guilty.

6.  On 15 August 1994, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-5, by reason of conviction by civil court.  He directed the applicant be furnished a general discharge under honorable conditions.

7.  On 22 August 1994, the applicant was discharged accordingly.  He completed 2 years and 19 days of net active service during this period.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, with his service characterized as under honorable conditions (general).  He was assigned a separation code of JKB and a narrative reason of separation as misconduct.

8.  On 1 February 2008, the Army Discharge Review Board reviewed all the evidence and factors of the applicant's discharge and denied his request for an upgrade of his discharge in its entirety.

9.  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, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because the Army abandoned him was found to be lacking in merit.  There are no provisions for a military attorney to represent a military member in a civilian court action; the member must hire a civilian attorney.

2.  The evidence of record shows he was convicted of armed robbery and discharged for misconduct due to a civilian conviction.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
3.  The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20150000658





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ABCMR Record of Proceedings (cont)                                         AR20150000658



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