IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080003906 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he feels he was not represented fairly.  He contends that his outstanding record was not considered and the entire case was based on another person’s word.  He admits that he made a bad decision but still loves the Army.  Since leaving the Army he has been an upstanding citizen and has no criminal background.

3.  The applicant provides no supporting documentation.

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 9 February 1983, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational specialty 13B (Field Artillery Crewman).

3.  On 12 September 1985 the applicant reenlisted for another 6 years.

4.  On 21 July 1987, the applicant was promoted to the rank of staff sergeant, pay grade E-6.

5.  Review of the applicant's service record shows that he was awarded three Army Commendation Medals, four Army Achievement Medals, and two Army Good Conduct Medals.

6.  On 2 July 1991, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for misconduct by committing a serious offense.  The specific allegations are not available for review; however, the board proceedings indicate that the applicant had conspired with a potential enlistee to falsify his aptitude test by having another person take it.  Also, the potential enlistee described acts of sodomy that the applicant had performed on him.  The applicant and his counsel were present.  The board found that a preponderance of the evidence supported the allegations and recommended that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

7.  On 11 July 1991, the applicant’s counsel requested that the commander direct a General Discharge Certificate be issued to the applicant based on his exemplary record, as evidenced by his many awards and commendations.  

8.  On 9 August 1991, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

9.  Accordingly, on 6 September 1991, the applicant was discharged under other than honorable conditions.  He had completed 8 years, 6 months and 
28 days of creditable active service.

10.  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.


11.  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.

12.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 125 for sodomy is a punitive discharge and confinement for 5 years; and for violation of Article 92 for failing to obey general orders or regulations is a punitive discharge and confinement for 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his overall record was not taken into consideration is not supported by the evidence of record.  In fact, the applicant's counsel pointed to the applicant's overall service record in his request to the commander that the applicant be given a general discharge under honorable conditions.

2.  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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant’s unsubstantiated claim of good post-service conduct does nothing to mitigate his acts of indiscipline during his military service.  

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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
      
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.

ABCMR Record of Proceedings (cont)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003906



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1