IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080006209 


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, upgrade of the character of service of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was coerced into accepting a discharge as an alternative to a court-martial.  He also states that the entire matter was based on 1 isolated incident that was blown out of proportion and he was discharged to spare the other individual who was involved any public embarrassment.  The applicant further states that the commander was upset at him because he went over the commander’s head to a Medical Evaluation Board and he was awarded 30 percent disability.  The applicant concludes by stating this 1 isolated incident should not be allowed to overshadow his remaining life.

3.  The applicant provides no additional documentary 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's military service records show he enlisted in the U.S. Army Reserve (USAR) on 4 January 1973 and entered active duty in the Regular Army (RA) for a period 3 years on 31 January 1973.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  The applicant was assigned overseas to U.S. Army, Europe (USAREUR) and served in Germany.

3.  The applicant's military service records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably discharged on 22 April 1982, under the provisions of Army Regulation 635-200, paragraph 5-12, because of the short length of time remaining on his active duty commitment precluded reassignment to a unit in the continental United States.  This document also shows at the time of the applicant’s discharge he had completed 2 years, 11 months, and 28 days net active service this period;
6 years, 2 months, and 24 days total prior active service; 27 days total prior inactive service; and 2 years, 8 months, and 1 day foreign service.  The DD Form 214 also shows that the applicant was transferred to the USAR Control Group (Reinforcement), Reserve Components Administration Center, St. Louis, Missouri.

4.  The applicant’s military service records show he enlisted and reentered active duty in the RA for a period of 3 years on 10 August 1983, in the rank of specialist four/pay grade E-4.  The applicant attended One Station Unit Training at Fort Bliss, Texas and, upon completion of training, he was awarded MOS 16R (Air Defense Artillery Short Range Gunnery Crewman).  On 30 December 1983, the applicant was assigned overseas to USAREUR and served in Germany.  On 13 February 1984, the applicant extended the period of his 3-year enlistment to a period of 3 years and 5 months.  

5.  The applicant’s military service records contain a copy of a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 23 April 1985.  This document shows, in pertinent part, that the PEB concluded that the applicant’s physical condition prevented satisfactory performance of duty as an Air Defense Artillery Short Range Gunnery Crewman in the grade of E-4.  This document also shows the PEB recommended the applicant’s permanent retirement with
30 percent disability.  This document further shows the recommendation was approved by the Assistant Adjutant General, U.S. Army Physical Disability Agency on behalf of the Secretary of the Army on 6 May 1985.

6.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Military Personnel Center, Alexandria, Virginia, Orders D106-44, dated
6 June 1985.  These orders show, in pertinent part, the applicant was relieved from assignment and duty because of permanent physical disability, effective
3 July 1985, and placed on the retired list, effective 4 July 1985.

7.  The applicant’s military service records contain a DA Form 4187 (Personnel Action), dated 21 June 1985, subject:  Involuntary 30-Day Extension.  This document shows that the applicant’s commander extended the applicant’s overseas tour for a period of 30 days from his current date eligible for return from overseas (DEROS) of 3 July 1985 to an adjusted DEROS of 2 August 1985 due to possible action under the Uniform Code for Military Justice (UCMJ) for indecent acts.

8.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 12 August 1985, that shows the Commander, Battery B,
1st Battalion, 59th Air Defense Artillery (Germany), preferred charges against the applicant for violation of the UCMJ, Article 134, with Specification 1, that the applicant did, at Mainz-Finthen, Federal Republic of Germany (FRG), on divers occasions between September 1984 and November 1984, commit indecent acts with the body of L______ W_________,  a female under 16 years of age, not the wife of the applicant.  Said offense occurring outside the territorial limits of the United States and not being cognizable in a United States Civilian Court; and with Specification 2, that the applicant did, at Mainz-Finthen, FRG, on some unknown date in May 1985, commit indecent acts with the body of M______ I. W______, a female under 16 years of age, not the wife of the applicant.  Said offense occurring outside the territorial limits of the United States and not being cognizable in a United States Civilian Court.

9.  On 16 August 1985, the applicant requested a discharge for the good of the Service under the provisions of Army Regulation 635-200, Chapter 10.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.

10.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he acknowledged guilt to the offenses charged; that he was afforded the opportunity to consult with counsel; that he 
was advised he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs]; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge; however, the applicant elected not to submit statements in his own behalf.

11.  On 19 August 1985, the captain serving as Commander, Battery B,
1st Battalion, 59th Air Defense Artillery, 8th Infantry Division (Mechanized) (Germany), recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an under other than honorable conditions discharge.  The commander added that he recommended approval because the Chapter 10 administrative discharge was the most expedient method of removing the applicant from the unit and the United States Army.

12.  On 26 August 1985, the lieutenant colonel serving as Commander,
1st Battalion, 59th Air Defense Artillery, 8th Infantry Division (Mechanized) (Germany), recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an under other than honorable conditions discharge.  The commander added that the acts which the applicant allegedly committed were reprehensible and the Army has no place for Soldiers who so violate the law, moral standards, and social norms to that degree.

13.  On 26 August 1985, the colonel serving as Commander, 1st Brigade,
8th Infantry Division (Mechanized) (Germany), recommended approval of the applicant’s request for discharge pursuant to chapter 10 of Army Regulation
635-200 and issuance of an under other than honorable conditions discharge.

14.  On 14 September 1985, the major general serving as Commander,
8th Infantry Division (Germany), approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service, with an under other than honorable conditions discharge.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

15.  The applicant's military service records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 10 August 1983 and was discharged on 4 October 1985, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.  This document also shows that at the time of his discharge the applicant had completed 2 years, 1 month, and 25 days net active service this period.

16.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

17.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 22 October 1990, that shows the applicant requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 6 July 1992, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 1 September 1992.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-14 (Factors governing time of processing) of this Army regulation, in pertinent part, provides that the point in time for referral of a Soldier for disability separation or retirement is determined on an individual basis.  Normally, Soldiers who are not likely to return to duty will be processed as soon as this probability is ascertained.  Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the Secretary of the Army.

19.  Army Regulation 635-40, paragraph 4-1 (Soldiers charged with an offense) provides, in pertinent part, that the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charge; the officer exercising proper court-martial jurisdiction dismisses the charges; or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

20.  Army Regulation 635-40, paragraph 4-3 (Enlisted Soldiers subject to administrative separation) provides, in pertinent part, that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

21.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An under other than honorable discharge normally is appropriate for a member who is discharged for the good of the Service.  

22.  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.

23.  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.

24.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was coerced into accepting a discharge as an alternative to a court-martial.  He also contends that the matter was based on 1 isolated incident that was blown out of proportion, he was discharged to spare the other individual who was involved any public embarrassment, and the commander was upset at him because he went over the commander’s head to a Medical Evaluation Board.

2.  The evidence of record shows that a discharge under the provisions of Army Regulation 635-200, Chapter 10, provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may voluntarily (emphasis added) submit a request for discharge for the good of the Service.  There is no evidence of record, and the applicant provides insufficient evidence, to show he was coerced (emphasis added) into requesting a discharge for the good of the Service in lieu of court-martial.  In fact, in the applicant’s request for discharge he stated “I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person.”  Thus, the evidence of record refutes the applicant’s claim that he was coerced into accepting a discharge as an alternative to a court-martial.

3.  The evidence of record shows that in his request for discharge the applicant stated, “[b]y submitting this request for discharge, I acknowledge that I understand the elements of the offense(s) charged and am guilty of the charge(s) against me or of (a) lesser included offense(s) therein contained, which also authorize(s) the imposition of a bad conduct or dishonorable discharge.”  It is noted that the charges against the applicant stated “on divers occasions between September 1984 and November 1984” and “on some unknown date in May 1985.”  Thus, the evidence of record refutes the applicant’s claim that the matter was based on 1 isolated incident that was blown out of proportion.  In addition, the applicant provides insufficient evidence that he was discharged to spare another individual who was involved any public embarrassment or that the commander was upset at him because he went over the commander’s head to a Medical Evaluation Board.

4.  The evidence of record shows that pertinent Army regulations provide that in the case of a Soldier charged with an offense under the UCMJ, or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, the Soldier may not be referred for, or continue 

(emphasis added), disability processing unless the investigation ends without charge.  The evidence of record also shows that pertinent Army regulations provide that an enlisted Soldier may not be referred for, or continue (emphasis added), physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

5.  The evidence of record shows that the applicant was evaluated by a PEB; found physically unfit; and approved for processing for release from assignment and duty because of permanent physical disability, effective 3 July 1985.  The evidence of record also shows that on 21 June 1985, the applicant’s commander initiated action to extend the applicant’s overseas tour for a period of 30 days from his DEROS of 3 July 1985 due to possible UCMJ action for indecent acts.  Thus, the applicant’s disability processing was appropriately discontinued pending the outcome of the investigation.  The evidence of record also shows that an investigation was conducted and charges were preferred against the applicant on 12 August 1985.

6.  The evidence of record shows, on 16 August 1985, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service in lieu of court-martial.  The evidence of record also shows that an under other than honorable discharge normally is appropriate for a member who is discharged for the good of the Service.  Thus, the applicant’s disability processing was appropriately discontinued pending the decision on the applicant’s request for discharge.  The evidence of record also shows that the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service, with an under other than honorable conditions discharge on 14 September 1985, and the applicant was discharged on 4 October 1985.

7.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

8.  The evidence of record shows that during the period of service under review, the applicant was charged with violation of the UCMJ, Article 134, consisting of
2 specifications of committing an offense, the punishment for which included a bad conduct or dishonorable discharge, and that the applicant voluntarily 
acknowledged guilt to the offense(s) charged.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

9.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-40 and Army Regulation 635-200, which provide processing procedures for separation and specific guidance in determining the character of service and description of separation.  Thus, in the absence of evidence to the contrary, it is concluded the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

10.  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

____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)                                         AR20080006209



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ABCMR Record of Proceedings (cont)                                         AR20080006209



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