RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070014376 


	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.


Ms. Catherine C. Mitrano

Director



Analyst

The following members, a quorum, were present:




Chairperson



Member



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, in effect, an upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, that his character of service does not reflect or warrant the under other than honorable conditions discharge.  Base on his ratings and military awards, he believes that he deserves a rating complimentary to a general discharge.  He has performed consistently above and beyond the call of duty on numerous occasions. 

3.  The applicant provides no additional documents in support of his application.

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.  On 2 August 1985, the applicant immediately reenlisted in the Regular Army for a period of 4 years, with 8 years and 2 months of prior active service and for Military Occupational Specialty (MOS) 71L (Administration Specialist).  The highest grade he attained was pay grade E-5.  He was awarded the Army Commendation Medal, the Army Achievement Medal with 2nd Oak Leaf Cluster, the Good Conduct Medal 3rd award, the NCO Professional Development Ribbon, the Overseas Service Ribbon with Numeral 2 and the Expert Marksmanship Qualification Badge Rifle, M-16.  

3.  The applicant's military service record shows he was arrested on 6 May 1989 by the state of Georgia, civil authorities for aggravated child molestation of a child under the age of 14 (she was 11 years old), statutory rape, kidnapping and burglary.  The applicant’s record indicates that he sat in jail for approximately 
2 years before he went to trial.  The stated reason for the delay was the DNA testing, which the applicant had requested.    

4.  On 21 May 1991, the Superior Court of Muscogee County, Georgia, convicted the applicant upon his plea of guilty to the charges of aggravated child molestation and statutory rape.  He was sentenced to civil confinement for 
15 years and upon service of 10 years of the above sentence the remainder of 
the 5 years could be served on probation, provided the applicant complied with certain conditions.  

5.  On 27 May 1992, the applicant was notified to appear before a board of officers.  The board convened at Fort Benning, Georgia on 17 June 1992, the applicant appeared via telephone to the Metro Correctional Institute, Atlanta, Georgia.  The board of officers met to determine whether the applicant should be discharged from the service by reason of Chapter 14-12c commission of a serious offense, under the provision of Army Regulation 635-200.  The board after a careful review of the evidence found the applicant did commit a serious offense recognized under Army Regulation 635-200, chapter 14; he was undesirable for further retention in the military and that he should be separated from active duty service.  In view of the findings the board recommended that the applicant be separated from the service and receive an under other than honorable conditions characterization of service.  

6.  On 5 August 1992, the Commanding General approved the recommendation and directed that the applicant be reduced to the lowest enlistment grade and discharged under the provisions of Army Regulation 635-200, chapter 14, Section II by reason of (civil conviction), with the characterization of under other than honorable conditions. 

7.  The separation document (DD Form 214) issued to the applicant upon his separation shows that on 18 August 1992, the applicant was discharged in pay grade E-1, with a discharge under other than honorable conditions.  He had completed 11 years, 11 months, and 5 days of creditable active service.  

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 statute of limitations.  

9.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate.

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, 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 contentions of the applicant were carefully considered; however, there is no evidence and the applicant has not provided sufficient evidence to warrant granting an upgrade of his character of service.  

2.  The evidence of record confirms that the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, was based upon his civil conviction.  The applicant pled guilty to the charges of aggravated child molestation and statutory rape.  He was sentenced to civil confinement for 
15 years.  The applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Thus, the applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his character of service.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___cd___  __FJ____  ___SF___  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.





_____Frank C. Jones______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.