IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080007442 


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 an upgrade of his discharge.

2.  The applicant states that his discharge was based on a civilian conviction and had nothing to do with the Army.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 March 1990, in support of her application. 

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 records show that he enlisted in the Regular Army for a period of 3 years on 17 September 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest grade she attained during her military service was private (PV2)/E-2.

3.  The applicant’s records also show he served in Hawaii from 4 January 1988 to 22 December 1988.  His awards and decorations include the Army Service Ribbon.  His records do not show any significant acts or achievements during his military service.

4.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 9 May 1988, for failing to go at the appointed time to his appointed place of duty, on or about 22 April 1988; his punishment consisted of 7 days of restriction and 7 days of extra duty; and

	b.  on 29 July 1988, for failing to go at the time prescribed to his appointed place of duty, on or about 22 July 1988.  His punishment consisted of reduction to private (PVT)/E-1 (suspended until 29 December 1988) and a forfeiture of $156.00 pay. 

5.  On 13 April 1989, the applicant appeared before the State of Hawaii Circuit Court of the First Court for the civil charges of three counts of sexual assault in the first degree and one count of sexual assault in the third degree.  He pled no contest to the charges.  The Court found him guilty and convicted him of all charges.  The Court sentenced him to 10 years incarceration for each count of sexual assault in the first degree and 5 years for the count of sexual assault in the third degree to be served concurrently, a total of 35 years. 

6.  On 28 November 1989, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 due to civil conviction by a civil court of multiple serious offenses.  

7.  On 1 December 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, and of the procedures/rights that were available to him.  He elected not to submit any statements on his own behalf and waived a personal appearance before an administrative separation board.     

8.  On 1 December 1989, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-5 of Army Regulation 635-200 for civil convictions of multiple serious offenses.  The specific basis of the recommendation was the applicant’s three counts of sexual assault in the first degree and one count of sexual assault in the third degree.  The immediate commander further recommended an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 1 December 1989, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 1 December 1989, the applicant’s senior commander also recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

11.  On 11 December 1989, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of civil conviction of multiple serious offenses and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 6 March 1990.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions character of service.  This form further confirms he completed a total of 2 years, 9 months, and 13 days of creditable military service and he had 232 days of lost time.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  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.

15.  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 he is entitled to an upgrade of his discharge.

2.  The evidence of record shows the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows he was convicted by a civil court for multiple counts of serious offenses of sexual assault.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080007442



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ABCMR Record of Proceedings (cont)                                         AR20080007442



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