RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014259 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann Jr.

Member

Mr. Gerald J. Purcell

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded to a general discharge or a medical discharge.

2.  The applicant states, in effect, he does not believe he was given the proper diagnosis and medical treatment to help solve his problem. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a written statement.

4.  In the written statement, the applicant states it was an unfortunate mistake he made due to a lack of medical knowledge.  He states that he was caught masturbating twice at Fort Lee, Virginia.  He was then sent to an Army psychiatrist because they assumed he was "touched" in the head.  He states after the first time he was caught the psychiatrist did nothing to help his problem. Soon after the second time he was caught he was told he would receive a dishonorable discharge.  He states, in effect, that he chose not to fight the decision because he deserved the punishment.

5.  He further states he was a victim of a hormonal imbalance and his testosterone levels were probably extremely high, and he could not control himself.  In 1982, he gave himself to God as his Lord and Savior and ever since then he has been cleansed from the problem, and he became a new man.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 November 1978.  The application submitted in this case is dated 
6 September 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.



3.  The applicant's records show that he entered active duty on 23 May 1975.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 57E1O (Laundry and Bath Specialist).  His highest grade held while on active duty was specialist/pay grade E-4.

4.  On 20 July 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty, a violation of Article 86, UCMJ and for dereliction of duty in that he willfully failed to remain awake while on door guard, a violation of Article 96, UCMJ.  His punishment consisted of a reduction to private/pay grade E-2 (suspended until 20 August 1977).

5.  On 15 August 1978, the applicant accepted NJP under the provision of Article 15, UCMJ, for willfully and wrongfully exposing his penis while seated in his automobile in an indecent manner in public view, a violation of Article 134, UCMJ.  His punishment consisted of a reduction to private first class/pay grade E-3 (suspended for 90 days) and forfeiture of seven days pay ($111.00) for one month.

6.  The applicant's discharge packet was not included in his records.  However, he was discharged under other than honorable conditions for a pattern of misconduct on 29 March 1978.  He had completed a total of 3 years, 6 months, and 7 days of active service.

7.  The applicant's service records do not contain a Standard Form 88 (Report of Medical Examination).

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

9.  Army Regulation 635-200 (Personnel Separations) 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, sexual perversion, including but not limited to lewd and lascivious acts, sodomy, indecent exposure and indecent acts with or assault upon a child.  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 appropriate for a Soldier discharged under this chapter.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

11.  Army Regulation 635-200, paragraph 3-7b, provides 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of indiscipline clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant was a specialist/pay grade E-4 when he indecently exposed himself in public.  He was fully aware of his responsibility as a Soldier in the U.S. Army.

2.  There is no evidence to show that he was treated by an Army psychiatrist or any indication that his misconduct would warrant a medical discharge.  The applicant's statement was carefully considered; however, his statement is not sufficient for upgrading a properly issued discharge.

3.  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.  Therefore, he is not entitled to correction of his records to show a general discharge or a medical discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 November 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
28 November 1981.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jev___  ____phm__  ____gjp_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__________James E. Vick_________
          CHAIRPERSON




INDEX

CASE ID
AR20060014259
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.