| Mr. Carl W. S. Chun | Director | |
| Ms. Deyon D. Battle | Analyst |
| Ms. Margaret K. Patterson | Chairperson | ||
| Mr. Walter T. Morrison | Member | ||
| Mr. Thomas E. O’Shaughnessy | Member |
APPLICANT REQUESTS: In two separate applications, that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.
APPLICANT STATES: That at the time of the alleged sexual assault, he was suffering from a hernia and his testimony was never heard during his
court-martial. He states that the only testimony that was heard was that of the alleged victim and her witness. He states that he has been unjustly accused of a crime and that he has served his country and deserves full benefits.
EVIDENCE OF RECORD: The applicant's military records show:
On 29 December 1980, he enlisted in the Army in Jacksonville, Florida, for 3 years in the pay grade of E-3. He successfully completed his training as a radio teletype operator and he was transferred to Germany.
Nonjudicial punishment (NJP) was imposed against the applicant on 11 May 1981, for failure to go to his appointed place of duty. His punishment consisted of a reduction in pay grade, restriction and extra duty.
On 13 August 1981, NJP was imposed against him for failure to go to his appointed place of duty, for absenting himself from his appointed place of duty, and for orally communicating insulting language to a female soldier. His punishment consisted of a reduction in pay grade and extra duty.
The applicant was convicted by a summary court-martial on 18 November 1981, of one specification of being disrespectful in language toward his superior noncommissioned officer (NCO) and of two specifications of disobeying a lawful order. He was sentenced to a reduction in pay grade and a forfeiture of pay.
On 27 July 1982, NJP was imposed against him for disobeying a lawful order. His punishment consisted of a forfeiture of pay, restriction and extra duty.
A review of the available records fails to reveal any information regarding a
court-martial conviction as a result of a sexual assault.
On 11 August 1982, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He acknowledged receipt of the notification on 12 August 1982 and after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.
The appropriate authority approved the recommendation for discharge on 19 August 1982. Accordingly, on 27 August 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities. He had completed 1 year, 7 months and 7 days of total active service and he had 22 days of lost time due to confinement.
There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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, convictions 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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.
2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
3. The Board has noted the applicant’s contentions. However, the evidence of record clearly shows that he was convicted by a summary court-martial and he had NJP imposed against him on three separate occasions as a result of acts of misconduct. Considering his numerous acts of indiscipline and the nature of his offenses, it does not appear that his discharge under other than honorable conditions was too severe.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__mkp___ __wtm __ __teo ___ DENY APPLICATION
| CASE ID | AR2003087366 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/07/29 |
| TYPE OF DISCHARGE | UOTHC |
| DATE OF DISCHARGE | 1982/08/27 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | 626 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 656 | 144.6400/FREQUENT INCIDENTS |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2002 | 2002072184C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 17 November 1981, his commander notified him that he was considering whether he should impose NJP against the applicant for being disrespectful towards a noncommissioned officer. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.
ARMY | BCMR | CY2003 | 2003086532C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board considered the following evidence: A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as...
ARMY | BCMR | CY2009 | 20090018427
When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge. _______ _ __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.
ARMY | BCMR | CY2001 | 2001057242C070420
EVIDENCE OF RECORD : The applicant's military records show: The record of trial was forwarded to the United States Army Court of Military Review for appellate review. No pay records were available for review.
ARMY | BCMR | CY2002 | 2002075789C070403
On 30 December 1980, NJP was imposed against the applicant for wrongfully having in his possession 1 gram, more or less, of marihuana on 16 December 1980. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: Carl W. S. Chun Director, Army Board for Correction of Military RecordsINDEXCASE IDAR2002075789SUFFIXRECONDATE BOARDED20021119TYPE OF DISCHARGE(GD)DATE...
ARMY | BCMR | CY2009 | 20090019070
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. It further shows he was discharged with an under other than honorable conditions discharge and that he completed 4 years, 2 months, and 19 days of total active service. Based on his record of indiscipline, which includes accepting NJP on...
ARMY | BCMR | CY2010 | 20100008699
Application for correction of military records (with supporting documents provided, if any). Accordingly, he was discharged under other than honorable conditions on 18 February 1982 under the provisions of Army Regulation 635-200, paragraph 14-33b, due to misconduct for frequent involvement in incidents of a discreditable nature with civil or military authorities. He failed to appear before that board and his case was reviewed based on the evidence and argument previously submitted with...
ARMY | BCMR | CY2004 | 2004106231C070208
He had completed 1 year, 4 months and 29 days of total active service. The United States Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB. There is...
ARMY | BCMR | CY2001 | 2001061546C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. The record does not indicate that the applicant petitioned the United States Court of Military Appeals for a grant of review. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
ARMY | BCMR | CY2008 | 20080012475
In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general...