IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20090000611 


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 an honorable or general discharge.

2.  The applicant essentially states that he needs his discharge upgraded so that he can receive medical treatment from the Department of Veterans Affairs (DVA). He also contends, in effect, that his civil conviction had nothing to do with the military, but that he was discharged so he could serve his sentence in a civilian jail.  He further contends that it was bad enough that he was reduced in rank and pay grade from specialist four/E-4 to private/E-1.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a partial DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 11 August 1981; orders, dated 23 October 1979, which awarded him the Good Conduct Medal (First Award); orders, dated 18 June 1979, which awarded him the Mechanic Badge with Mechanic Bar; a certificate, dated 1 November 1978, from the 122nd Maintenance Battalion; a letter of appreciation, dated 26 April 1979; a letter of commendation, dated 21 October 1981, with a first endorsement, dated 2 November 1981; and a partial letter, dated 29 October 2008, from the DVA 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 military records show that he enlisted in the Regular Army on 4 August 1976.  He completed initial entry training and was awarded military occupational specialty 63H (Track Vehicle Repairer).  He served a tour in Germany from 28 January 1977 to 30 October 1979, then was reassigned to Fort Campbell, Kentucky, in December 1979.  In July 1980, he was reassigned to Fort Hood, Texas.

3.  On 27 August 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior noncommissioned officer (NCO).  His punishment consisted of a reduction in rank and pay grade from specialist four/
E-4 to private first class/E-3, extra duty for 14 days, and forfeiture of $100.00, the last of which was suspended for 60 days.

4.  On 6 August 1980, the applicant was confined by civil authorities in Copperas Cove, Texas, and charged with indecency with a child.  He was released the following day.

5.  On 28 January 1981, the applicant was found guilty of the offense of indecency with a child in the Coryell County, Texas, District Court.  He was sentenced to confinement in the Texas Department of Corrections for a term of 7 years and fined $1,000.00; however, instead of confinement, he was placed on 7 years of probation.

6.  On 16 September 1981, the applicant's commanding officer notified him of his intention to initiate action under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel), which could result in his separation from the United States Army based on his civil conviction of indecency with a child.  He was advised that he could consult counsel at the office of the Staff Judge Advocate and that after consulting with counsel, he would advise him of his intention and return it to him by 3 duty days.

7.  On 21 September 1981, the applicant acknowledged that he had been advised by counsel of the contemplated action to accomplish his separation under chapter 14, Army Regulation 635-200, for conviction by a civil court.  He understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He also elected to not submit statements in his own behalf and waived representation by counsel.  He further indicated that he did not intend to appeal his conviction for indecency with a child or his sentence of 7 years of probation.

8.  On 20 January 1982, the proper separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, and directed that he be discharged under other than honorable conditions.  He also directed the applicant's reduction in rank and pay grade to private/E-1.  On 3 February 1982, the applicant was discharged accordingly.

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted. 

11.  Army Regulation 635-200, paragraph 3-7a, provides, in pertinent part, 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.

12.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, 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 contends that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge.

2.  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 this requirement.

3.  The applicant's contention that his civil conviction for indecency with a child had nothing to do with the military was noted.  However, as a convicted child molester, it was clearly in the best interests of the Army to accomplish his separation under the provisions of chapter 14, Army Regulation 635-200, and his command had the regulatory authority to do so.

4.  The awards and commendatory documents provided by the applicant were carefully considered, as was his entire record of service.  However, as he was convicted in civil court for indecency with a child and accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior NCO, his record of indiscipline so far outweighs his record of service that an upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for upgrading the applicant's discharge under other than honorable conditions to an honorable or general discharge.

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.



      __________XXX_______________
                 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)                                         AR20090000611



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ABCMR Record of Proceedings (cont)                                         AR20090000611



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