IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013885 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013885 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150013885 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 character of service from under other honorable conditions (general) to honorable. 2. He states he has been working for the Government in Germany since October 1995 and had nothing but positive evaluations. He adds he has also maintained a security clearance since May 2010. Military standards and values are part of his day-to-day routine. 3. He provides three DA Forms 7223 (Base System Civilian Evaluation Report). 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 21 October 1986. 3. On 29 July 1988, he underwent a mental status evaluation and he was psychiatrically cleared for administrative actions deemed appropriate by the command. 4. Special Court-Martial Orders Number 25, issued by Headquarters, 3d Infantry Division, Germany, on 4 August 1988 show: a. on 8 July 1988, a special court-martial convicted him of: * stealing an automatic teller machine card issued to another Soldier on or about 7 February 1988 * unauthorized use of the bank card in the amount of $300.00 on or about 7 February 1988 * unauthorized use of the bank card in the amount of $300.00 on or about 8 February 1988 b. The court sentenced him reduction to the grade of private (E-1), confinement at hard labor for 1 month, hard labor without confinement for 3 months, restriction for 2 months, and a forfeiture of $400.00 pay per month for 3 months. 5. On 8 August 1988, the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Unsatisfactory Performance), based on commission of willful acts in violation of the Uniform Code of Military Justice. He cited the applicant's conviction by a special court-martial as the basis for his recommendation. Additionally, he stated in his opinion, the applicant's retention in the Army would have an adverse impact on military discipline, good order, and morale. The applicant was advised of his rights. 6. On 8 August 1988, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he waived consideration of his case by an administrative board and elected not to submit a statement in his own behalf. He acknowledged he understood he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further acknowledged he understood if he received a character of service that was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply his discharge would be upgraded. 7. On 8 August 1988, the applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 13-2a(1) and 13-2a(6) with the issuance of a General Discharge Certificate. The commander based his recommendation on the applicant's willful acts in violation of the Uniform Code of Military Justice, which included one special court-martial for larceny of an auto teller card, and two counts of larceny for $300.00 each. The commander requested the waiver of rehabilitative and reassignment requirements. 8. On 30 August 1988, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13, waived the rehabilitation requirements, and directed the issuance of a General Discharge Certificate. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 4 October 1988, under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance with an under honorable conditions (general) characterization of service. He completed 1 year, 10 months, and 20 days of creditable active service. 10. There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. 11. The applicant provides three annual Civilian Evaluation Reports that show he consistently performed in an outstanding manner while assigned as a civilian in the positions of Registration Assistant and Physical Security Assistant in Germany. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. b. 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: 1. The applicant argues, in effect, that his discharge should be upgraded to honorable based on his civilian service in the Government. The fact that the applicant has received three annual civilian evaluations that rate his job performance as outstanding is commendable; however, good post-service conduct alone is not a basis for upgrading a discharge. 2. The available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. The available evidence shows the applicant’s discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline, which includes a court-martial conviction for larceny and the theft of $600.00, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. In accordance with Army Regulation 635-200, his service does not meet the criteria for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013885 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2