IN THE CASE OF:	  

	BOARD DATE:	  9 September 2008

	DOCKET NUMBER:  AR20080011116 


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 that his discharge is inequitable because it is based on one isolated incident and did not consider his previous honorable enlistment and reenlistments.  He was not court-martialed but was separated without his knowledge.  He also contends that he was told his discharge would be automatically upgraded after a few years, which has not happened. 

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).

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 21 October 1970, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 9 April 1971, the applicant was assigned for duty as an infantryman with the 1st Battalion, 54th Infantry Regiment, in the Federal Republic of Germany.  He served in this position until his return to the United States on or about 
9 October 1972.

4.  On 10 May 1972, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had attained the rank of specialist four, pay grade E-4 and had completed 1 year, 
6 months, and 20 days of creditable active duty.  His characterization of service was honorable.

5.  On 5 June 1972, the applicant enlisted in the Regular Army beginning in the rank of specialist four.  He completed his advanced individual training and was awarded MOS 74C (Data Analysis Specialist).  He was subsequently assigned to Fort Campbell, Kentucky. 

6.  On 8 August 1974, the applicant was reassigned to Fort McPherson, Georgia for duty as a data analysis specialist. 

7.  On 15 April 1975, the applicant was discharged from active duty for the purpose of immediate reenlistment.  He had attained the rank of specialist four, pay grade E-4, and had completed 2 years, 10 months, and 11 days of creditable active duty during this period of service.  His characterization of service was honorable.

8.   On 16 April 1975, the applicant reenlisted in the Regular Army.  

9.  On 4 October 1976, the applicant was assigned for duty as a magnetic card reader operating specialist with the 574th Personnel Service Company in the Federal Republic of Germany. 

10.  On 31 July 1978, charges were preferred under the Uniform Code of Military Justice for violation of Article 134 (Indecent Assault) by committing a lewd and lascivious act upon the body of a female child under the age of 16 years.  



11.  On 1 December 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

13.  On 8 December 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Discharge Certificate.  On 25 January 1979, the applicant was discharged accordingly.  He had completed a total of 8 years, 2 months and 
11days of creditable active military service.

14.  On 21 July 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

15.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article 134, for indecent assault.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

4.  The applicant's offense involved moral turpitude and outweighed any mitigation arising from his prior 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 the aforementioned 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



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ABCMR Record of Proceedings (cont)                                         AR20080011116



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