IN THE CASE OF:	

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20080018267 


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 his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states he believes he should have been issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) when he reenlisted.

3.  The applicant provides a DD Form 214 in support of this 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 he enlisted in the Regular Army on 28 March 1978.  He completed basic combat and advanced individual training and was 
awarded military occupational specialty (MOS) 16R (air defense artillery short range gunnery crewman).  He subsequently reenlisted on 2 October 1980 for four years.  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.

3.  The available records do not show any significant acts of achievement or valor during his military service.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 17 April 1981, for two specifications of using disrespectful language toward his superior noncommissioned officers on 26 March 1981 and for failing to go at the time prescribed to the appointed place of duty on or about 27 March 1981.

5.  On 10 April 1981, court-martial charges were preferred against the applicant for rape of a female under the age of sixteen and for committing sodomy with a child under the age of sixteen years on or about 6 March 1981.

6.  On 18 June 1981, the preferred court-martial charges were referred for trial by a general court-martial. 

7.  On 29 June 1981, having been properly advised by legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (for the good of the service – in lieu of court-martial).  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.

8.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged that he had consulted with counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by 
the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 8 July 1981, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade.  On 23 July 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant confirms he completed a total of 3 years, 3 months, and 26 days of creditable active military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  Army Regulation 635-5 (Separation Documents) provides that, effective
1 October 1979, DD Forms 214 are not issued to enlisted service members who are discharged for immediate reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was referred for a general court-martial for committing rape and sodomy with a female under the age of sixteen years.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant had to have admitted guilt and requested discharge in lieu of court-martial.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  As for his prior discharge, the applicant immediately reenlisted on 2 October
1980.  At that time, a DD Form 214 was not issued for an immediate reenlistment.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20080018267



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ABCMR Record of Proceedings (cont)                                         AR20080018267



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