IN THE CASE OF:	

		BOARD DATE:	28 April 2009  

		DOCKET NUMBER:  AR20080020045 


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.

2.  The applicant states that he was retained in the service upon completion of a general court-martial, but against counsel's recommendation he chose to do a post-trial chapter 10 discharge.  He states the error was self-inflicted and he desires to complete his career.

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 12 July 1990.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of food service specialist.  He was promoted to pay grade E-7.

2.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Evidence of record shows the applicant was charged with rape of a person under the age of 16 years, forcible sodomy with a child under 16 years, four specifications of indecent acts with a person under 16 years, and making a false statement with intent to deceive.
4.  On 20 January 2005, the applicant was found guilty by a general court-martial of rape of a person who had not attained the age of 16 years, four specifications of indecent acts with a female under 16 years, and submitting a false statement with intent to deceive.  His sentence consisted of reduction to the grade of specialist/E-4 and to confinement for 6 months.

5.  On 10 February 2005, the applicant voluntarily requested, in writing, a post-trial discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  The applicant stated that he understood he could request this post-trial discharge because he was convicted by court-martial of offenses which, or a combination of which, authorized the imposition of a bad conduct or dishonorable discharge, although he was not punitively discharged.

6.  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.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and was fully advised of the nature of his rights under the Uniform Code of Military Justice.

7.  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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  He acknowledged that there is neither automatic upgrading nor review by a Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished review of his discharge.  He acknowledged that the act of consideration by either board does not imply that his discharge will be upgraded.  The applicant did not submit a statement on his own behalf.

9.  On 17 February 2005, the separation authority conditionally approved the discharge with an under other than honorable conditions characterization of service.  The applicant was reduced to the lowest enlisted rank.

10.  On 27 February 2005, the applicant was discharged with an under other than honorable conditions characterization of service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant confirms he completed a total of 14 years, 7 months, and 16 days of creditable active military service.

11.  On 9 August 2006, the ADRB denied the applicant's request to upgrade his discharge.

12.  On 28 March 2008, the ADRB denied the applicant's request for reconsideration of its denial to upgrade his discharge under other than honorable conditions.

13.  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.

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

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 was convicted by a general court-martial of committing rape of a person who had not attained the age of 16 years, four specifications of indecent acts with a female under 16 years, and submitting a false statement with intent to deceive.  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 admit guilt and request 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 an honorable or 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.  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)                                         AR20080020045



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ABCMR Record of Proceedings (cont)                                         AR20080020045



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