IN THE CASE OF:	  

		BOARD DATE:	        12 February 2009

		DOCKET NUMBER:   AR20080018442 


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 be upgraded.

2.  The applicant states, in effect, he was sexually attacked at Fort Jackson by a sergeant from the firing range.  He argues that he had been through a lot of therapy and counseling, that it was not his fault, and that it caused him to hate the military and changed his feelings about being in the service.  He states that he was a perfect Soldier and that he was promoted to private first class prior to completion of advanced individual training.  He states that he took the discharge to avoid a court-martial.  He continues that he was young, on his own, and mentally unstable.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 Army on 22 July 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 4 December 1980, the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing a cassette tape that was the property of the Main Exchange.  The punishment consisted of forfeiture of $116.00 per month for one month, placement in the Correctional Custody Facility for 7 days (suspended for 30 days), and extra duty.

4.  On 17 April 1981, the applicant was punished under the provisions of Article 15 of the UCMJ for failure to go to his appointed place of duty.  The punishment consisted of forfeiture of $116.00, extra duty, and restriction.

5.  A DD Form 458 (Charge Sheet), dated 31 March 1982, shows the applicant went absent without leave (AWOL) on 5 August 1981 and returned to military control on 26 March 1982.

6.  On 2 April 1982, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of court-martial.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  On 14 April 1982, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed he be furnished an under other than honorable conditions discharge.

8.  On 20 May 1982, the applicant was discharged with an under other than honorable conditions discharge.  The applicant had completed a total of 1 year, 1 month, and 11 days of creditable active service with approximately 230 days of lost time.

9.  The applicant stated on his application that he was sexually assaulted by a sergeant from the firing range.  However, there is no evidence in the available records which substantiates the applicant's claim.

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.  

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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's request for a discharge upgrade has been carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations in which the applicant must admit guilt of the charges.

3.  The available evidence shows the applicant was punished under the UCMJ on two occasions and had approximately 230 days of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards 

of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions or an honorable discharge.

4.  Lacking evidence to the contrary, it appears that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of service and the reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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)                                         AR20080018442



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ABCMR Record of Proceedings (cont)                                         AR20080018442



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