RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080001105 


	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.




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, that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he is 5th generation military and his son is joining the Corp (interpreted as Marine Corps) next year.  He was an exemplary Soldier who made some very youthful mistakes.  He had disgraced himself and his beloved duty as a Soldier and now he would like to have his discharge reviewed for an upgrade in hopes of rewriting his youthful stupidity.  He has been a Pastor for 12 years and he needs to make amends with his country.

3.  The applicant provides a copy of his separation document (DD Form 214) and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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 23 September 1981.  He completed the necessary training and was awarded the military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  His highest pay grade held was E-5.

3.  On 21 September 1988, the applicant was convicted by a general court-martial of carnal knowledge and wrongfully having intercourse with a woman not his wife.  His punishment consisted of reduction to grade E-3, forfeiture of $892.00 a month for three months, and restriction to his place of duty.  Only so much of the sentence as provided for forfeiture of $594.00 a month for three months and restriction to his place of duty was executed.

4.  The applicant’s military personnel record does not contain a copy of the applicant’s separation packet; however, it does contain extracts of a copy of a “summary of board proceedings.”  A board of officers was convened on 2 March 1990 to determine whether the applicant should be separated due to misconduct. The documents include portions of the verbatim transcript from the hearing, which show the documents entered into record without objection from the applicant's defense counsel at the hearing included the urinalysis custody and report record, general court-martial order, Article 15 proceedings for abuse of illegal drugs, sworn statements, counseling statements, dishonored checks, and an Armed Forces traffic ticket.  The records provided to the Board do not include the findings and recommendation of the board of officers. 

5.  Headquarters, 3rd Infantry Division memorandum dated 15 March 1990, noted that the applicant was barred to reenlistment because of his commission of a serious offense; misconduct-abuse of illegal drugs.

6.  On 15 March 1990, the commanding general approved the recommendation for elimination under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14-12c, commission of a serious offense.

7.  On 9 April 1990, the applicant was discharged with an under other than honorable conditions discharge.  The DD Form 214 he was issued shows he completed a total of 8 years, 6 months, and 17 days of Net Active Service This Period and was discharged at pay grade E-1.

8.  The applicant applied to the Army Discharge Review Board (ADRB) on 
25 April 1990.  On 25 July 1991, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below  
E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of 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 (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 contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence shows the applicant was convicted by a general court-martial for carnal knowledge and wrongfully having intercourse with a woman not his wife.  He was also barred to reenlistment because of his commission of a serious offense which was said to be abuse of illegal drugs.  While the specific act or acts of misconduct which led to the applicant’s commander’s initiation of his separation is not contained in the available record, the applicant was referred to a board of officers that recommended that he be separated due to misconduct.  The recommendation was approved by a general officer and the applicant was discharged for misconduct-commission of a serious offense under the provision of Army Regulation 635-200, chapter 14-12c.

3.  The applicant’s discharge proceedings would have been supported by either his general court-martial conviction or his abuse of illegal drugs (regulatory guidance requires initiation of separation actions of those Soldiers in the pay grade of E-5 and above and allows for consideration of separation actions of those Soldiers in pay grades E-4 and below).  

4.  The applicant’s statement that he is a 5th generation military and his son is joining the Marine Corps; that he made some very youthful mistakes; that he disgraced himself and his beloved duty as a Soldier; and that he has been a Pastor for 12 years is noted.  However, these factors are not sufficient to mitigate a properly issued discharge.  



5.  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 correction of his records to show an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X___  ___X_____  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.




      ________X______________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001105



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508