IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150002994 


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 (GD).

2.  The applicant states his discharge was not equitable and that his military service did not warrant the UOTHC discharge he received due to a civilian conviction.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  Having prior service in the Regular Army (RA), the applicant enlisted again in the RA on 10 April 1979.  He completed initial entry training, and he was awarded military occupational specialty 11B (Infantryman).

3.  On 11 October 1983, he was sentenced to the California State Prison for the offense of murder in the first degree, for a term of 25 years to life, with the enhancement of “armed and did use a deadly weapon” for one year.

4.  On 10 February 1984, he acknowledged notification of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for conviction by a civil court for first degree murder.

5.  On an unknown date, he was advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.

6.  After consulting with counsel, he requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He elected not to submit statements in his own behalf.

7.  He acknowledged he understood that an UOTHC discharge was the least favorable characterization of service he could receive and that he could expect to encounter substantial prejudice in civilian life if a GD or UOTHC discharge were to be issued to him.

8.  He acknowledged he understood that, as the result of issuance of a UOTHC discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 17 April 1985, the administrative separation board convened at Fort Irwin, CA.  The board found the allegation was supported by the evidence, the evidence warranted separation, and that the applicant should be separated for misconduct with an UOTHC discharge.

10.  On 28 May 1985, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he be given a UOTHC discharge.

11.  On 13 June 1985, he was discharged in accordance with the separation authority's decision.

12.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

13.  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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.
   
	b.  Paragraph 3-7a provides that an honorable discharge (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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support upgrading the applicant's UOTHC discharge.

2.  The applicant contends that his discharge was not equitable; however, the record shows that on 11 October 1983 he was convicted of first degree murder and sentenced to 25 years to life in a California prison.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.  Therefore, he is not entitled 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)                                         AR20150002994





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002994



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1