IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080014661 


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, his discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the U.S. Supreme Court reversed his general court-martial ruling on the grounds of hearsay and ruled the Army could order a new court-martial.  He also states the Army did not order a new court-martial but used evidence from the overturned court-martial to process him for discharge under chapter 14 of Army Regulation 635-200 (Personnel Separations).  He states evidence and statements that the U.S. Supreme Court ruled hearsay and the charges that were ruled not guilty at the court-martial were used in the Board of Officers hearing.  He states the Army used evidence that went against the 
U.S. Supreme Court ruling and the court-martial ruling to put him out of the service under other than honorable conditions and to reduce him to private/pay grade E-1.

3.  The applicant provides no additional evidence or official documentation in support of his 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 military personnel record shows he initially enlisted in the U.S. Army Reserve (USAR) on 5 January 1979 for a period of 6 years.  He entered active duty on 25 June 1979 to complete basic combat training and was released from active duty on 22 August 1979.  On 19 February 1980, he entered active duty to complete advanced individual training and he was awarded the military occupational specialty of 76W (Petroleum Supply Specialist).  He was released from active duty on 7 June 1980.

3.  On 23 October 1980, the applicant enlisted in the USAR Delayed Entry/Enlistment Program (DEP) and on 6 January 1981 he was enlisted in the Regular Army for a period of 3 years.

4.  On 27 September 1982, the applicant was tried before a general court-martial.

	a.  the applicant pleaded not guilty to and was found guilty of two specifications of committing a lewd and lascivious act upon the body of a female under sixteen years of age; and 

	b.  the applicant pleaded not guilty and was found not guilty of committing an assault on a private first class.

5.  The applicant's sentence consisted of reduction to private/pay grade E-1, forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge from the Army.  The convening authority approved the sentence on 17 November 1982.

6.  On 22 December 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 26 March 1984, the U.S. Court of Military Appeals ordered a sanity board and remanded the case to the U.S. Army Court of Military Review.

8.  On 6 July 1984, the U.S. Army Court of Military Review ordered that a limited hearing be held for the purpose of receiving all available evidence bearing on the issue of the applicant's mental responsibility.
9.  On 11 July 1984, The Judge Advocate General of the Army designated the Commander, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, as the convening authority to take action in accordance with the U.S. Army Court of Military Review's decision.  The limited hearing was held on 4 and 5 September 1984 and the case was returned to the U.S. Army Court of Military Review as directed.  On 30 November 1984, the U.S. Army Court of Military Review again affirmed the findings of guilty and the sentence.

10.  On 11 April 1988, the U.S. Court of Military Appeals reversed the decision of the U.S. Army Court of Military Review, set aside the findings of guilty and the sentence, authorized a rehearing, and returned the record to The Judge Advocate General of the Army.  

11.  On 22 April 1988, The Judge Advocate General of the Army designated the Commander, U.S. Army Combined Arms Center and Fort Leavenworth, as the convening authority to take action in accordance with the decision of the 
U.S. Court of Military Appeals.

12.  On 21 October 1988, the Commander, U.S. Army Combined Arms Center and Fort Leavenworth, directed that a rehearing be held and on 7 July 1989 and directed that a Board of Officers be convened pursuant to chapter 14 of Army Regulation 635-200 to consider whether the applicant should be separated from the U.S. Army pursuant to that regulation in lieu of trial by court-martial.

13.  On 17 July 1989, a Board of Officers was convened.  The applicant and his counsel were present.  The applicant was advised of his right to cross-examine any witness called before the board.  On 9 August 1989, the Board of Officers found that the preponderance of evidence indicated a pattern of misconduct, the alleged acts of lewd conduct did occur, the most recent being with the applicant's minor niece in 1986, that attempts at rehabilitation have failed, and that further attempts to rehabilitate the applicant would be unlikely to succeed.  The Board of Officers recommended the applicant receive a discharge under other than honorable conditions.

14.  On 9 August 1989, the commanding general approved the recommendation of the Board of Officers and directed the applicant be separated from the U.S. Army under the provisions of chapter 14, Army Regulation 635-200, with an under other than honorable conditions discharge and dismissed the court-martial charge and its two specifications.

15.  On 25 August 1989, the applicant was discharged by reason of commission of a serious offense.  He had completed 8 years, 7 months, and 20 days of active service that was characterized as under other than honorable conditions.

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

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for the commission of a serious offense and that the procedures for an administrative separation board be will be used.  The rules of evidence for court-martial and other judicial proceeding are not applicable before an administrative separation board.  Action will be taken to separate an individual for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge.  An honorable discharge may be approved by the commander exercising general court-martial jurisdiction or higher authority.

18.  Section III (Administrative Board Procedure) of chapter 2 (Procedures for Separation) of Army Regulation 635-200, then in effect, provided that the rules of evidence for court-martial and other judicial proceedings are not applicable before an administrative separation board.  This regulation further stated the board would determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because the Board of Officers used evidence from the overturned court-martial and the charges that were ruled not guilty at the court-martial against him at the board hearing.  He further contends the U.S. Supreme Court reversed his general court-martial on the grounds of hearsay and ruled the Army could order a new court-martial.

2.  The U.S. Army Court of Military Appeals, not the U.S. Supreme Court, reversed the decision of the U.S. Army Court of Military Review and set aside the findings of guilty and the sentence, authorized a rehearing, and returned the record to The Judge Advocate General of the Army.

3.  The convening authority, appointed by The Judge Advocate General of the Army, directed that a Board of Officers be convened to consider whether the applicant should be separated under the provisions of chapter 14 of Army Regulation 635-200 in lieu of trial by court-martial.

4.  A Board of Officers was convened and the applicant and his counsel were present at the hearing.

5.  The rules of evidence that apply to court-martial proceedings do not apply when appearing before a Board of Officers.  All evidence made available to the Board can be considered and their findings and recommendations are based on the preponderance of the evidence.  The Board of Officers' findings did not mention the charge of which the applicant was found not guilty at his court-martial.  Therefore, the remaining charges of lewd conduct with a minor were correctly reviewed in the Board's proceedings.

6.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  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 that 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)                                         AR20080012093



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ABCMR Record of Proceedings (cont)                                         AR20080014661



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