IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080004975 


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 that his discharge be upgraded.  He also requests that the date entered active duty on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states that it was a she said/he said ordeal.  He never asked the alleged victim for sex.  He was facing court-martial and dealing with his father’s death at the same time and had no fight left in him because he was so overwhelmed by the death of his father and by his wife’s cheating.  He signed the papers just so it would all go away so he could deal with his father’s death.  Somehow, the alleged victim got his number and called his home in Colorado after he separated and said she was sorry.  She had made the whole thing up and it had gotten too big for her to turn back and tell the truth or she would have been put out of the Army herself.  He just wants to do the right thing and fight for his country or at least help fight the war on the civilian side.  

3.  The applicant also states that the amount of time he spent in the Army as shown on his DD Form 214 is not correct.

4.  The applicant provides no additional evidence.

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 enlisted in the Delayed Entry Program (DEP) on 21 April 1977.  He enlisted in the Regular Army on 6 September 1977 for 3 years.  He extended for 12 months on 21 July 1980.  He reenlisted on 18 March 1981.  He was promoted to Sergeant, E-5 on 3 July 1985.  He last reenlisted on 28 May 1986 for 6 years.

3.  On 15 February 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for striking his wife on the face with his fist; for being drunk and disorderly; and for resisting apprehension by local authorities.

4.  The court-martial charges and the discharge proceedings packet are not available.

5.  On 31 December 1990, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu or trial by court-martial with a discharge under other than honorable conditions.  

6.  Item 12a (Date Entered Active Duty this Period) of the applicant’s DD Form 214 shows he entered active duty on 18 March 1981; item 12c (Net Active Service this Period) shows he completed 9 years, 9 months, and 13 days of creditable active service (with no lost time); and item 12d (Total Prior Active Service) shows he had no prior active service.  Item 12e (Total Prior Inactive Service) shows he had 4 months and 15 days of total prior inactive service.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 

discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include 
the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  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.  

9.  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 discharge packet is not available and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  It is also presumed that the characterization of his service as under other than honorable conditions is commensurate with the overall quality of his service and the offense for which he was charged.  

2.  There is an error on the applicant’s DD Form 214.  He enlisted in the DEP     on 21 April 1977 and enlisted in the Regular Army on 6 September 1977.  He had no breaks in service.  His service from 6 September 1977 until his first reenlistment on 18 March 1981 is not reflected on his DD Form 214 either in item 12a or in item 12d although his prior inactive service in the DEP is properly reflected in item 12e.  

3.  Item 12a of the applicant’s DD Form 214 should be corrected to show he entered active duty on 6 September 1977 with the appropriate recalculation of active service in item 12c.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  __xx____  ___xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 12a of his DD Form 214 to show he entered active duty on          6 September 1977 with the appropriate recalculation of active service in item 12c.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge.



	_______xxxxx___________
		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)                                         AR20080004975



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ABCMR Record of Proceedings (cont)                                         AR20080004975



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