RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070018966 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, the court system never charged him with anything and the charges filed against him were dropped.  The woman he met in a night club told him she was 19 years old, but when he met her parents he found out she was only 16 years old.  He had no idea how old she was, but if he knew he would not have talked to her.

3.  He continues he should have never received a general discharge for bad conduct, because he was never charged with any offense.  Nothing was ever proven, it was all based on assumption.  He is trying to finish his education by obtaining a Business Administration degree.  He also wants to finish his term in the Army, as his brother will retire from the Army in 4 months.  He would like for an upgrade to his discharge based on two factors; he never got into trouble in his life; and nothing was ever proven, because the whole case was dropped.  He was told to accept the discharge because it would be an honorable discharge, but he found out differently.  He is trying to get his discharge upgraded to show his character as a good person and for his educational benefits.

4.  The applicant provides a copy of 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.  The applicant's military personnel record shows he enlisted in the Regular Army on 1 October 1991.  He completed the necessary training and was awarded the military occupational specialty (MOS) 88N (Traffic Management Coordinator).

3.  On 14 July 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for committing an offense of carnal knowledge with a minor and wrongfully having sexual intercourse with her between 14 February 1993 and 8 June 1993. 

4.  The applicant's military record shows that on 23 May 1993, he was arrested for lewd and lascivious behavior in the form of stalking a 15 year old girl.  The statements that were made at the Ocala Police Department confirmed the events that led to the charges against the applicant.  The statements noted that the applicant confessed (taped recorded) to having sexual intercourse with a 15 year old girl on several occasions.

5.  His military record shows the Circuit Court of the State of Florida for Marion County, Florida had charged the applicant with lewd and lascivious behavior; stalking a child under the age of 16.  However, the State of Florida made the announcement that it would not file information based on the grounds of consensual nature of interaction that made prosecution equitably weak.  Therefore, the victim's father supported handling the situation through the military because the applicant was a Soldier.

6.  On 10 September 1993, the applicant's commander recommended separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14-12c, Commission of a Serious Offense, for adultery and carnal knowledge by having sexual relations on numerous occasions with a 15 year old girl.  He was advised that the separation authority was not bound by the recommendation as to the characterization and they may direct characterization as honorable, general under honorable conditions, or other than honorable.  If the recommendation was approved the proposed separation could result in a discharge or release from active duty to a Reserve Component.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel.  The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges and to have his case heard before an administrative separation board.  The applicant acknowledged receipt of the recommendation.



7.  On 15 September 1993, the recommendation for separation was approved by the appropriate authority.

8.  On 8 October 1993, the applicant was given a General Discharge Certificate for misconduct.  He had completed a total of 2 years and 8 days of Net Active Service This Period.

9.  The applicant applied to the Army Discharge Review Board (ADRB) on 
19 May 1995.  On 13 January 1997, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

10.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 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.  A discharge under other than honorable conditions is normally considered appropriate. 

11.  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.

12.  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 contends that his general discharge should be upgraded to an honorable discharge.

2.  However, his discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for a general discharge for misconduct.

3.  The applicant contention that the court system never charged him with anything and the charges filed against him were dropped and he did not know the woman he met in a night club was under 19 years old until her parents told him is noted.  Also noted is the applicant's contention that the offense was never proven since it was all based on assumption.  

4.  However, the evidence shows that the applicant made a tape recorded statement at the Ocala Police Department on 20 May 1993, which confirmed he did have sexual intercourse with a 15 year old girl.  The State of Florida did not file information based on the grounds of the consensual nature of interaction that made prosecution equitably weak; nevertheless, this action did not indicate that the applicant was innocent of the offense.

5.  The applicant's contentions have been noted; however, these factors do not provide a sufficient basis for upgrade of his discharge.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD __  __LMD__  __JCR___   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.




___Carmen Duncan  ___
      CHAIRPERSON