IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090003148 


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, an upgrade of the character of service of his under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he was a good Soldier who put 110 percent into service to his country.  He also states he was discharged for a civilian conviction that was the result of actions that were out of his character.  He further states he is currently under treatment and recently learned that he must obtain an upgrade of the character of service of his discharge in order to be eligible for government benefits.

3.  The applicant provides no additional documentary evidence.

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 records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty this period as a member of the Army National Guard of the United States, on 22 March 1979, was honorably released from active duty for training (ADT), on 30 August 1979, and transferred to the control of the Indiana Army National Guard.  The DD Form 214 shows the applicant completed the 16-week Special Electronic Devices Repairer course and he was awarded military occupational specialty (MOS) 35E (Special Electronic Devices Repairer).  At the time of his release from ADT the applicant had completed 5 months and 9 days of net active service this period; 
6 months and 6 days of prior inactive service; and 11 months and 15 days of total service for pay.

3.  The applicant’s military personnel records show he enlisted in the U.S. Army Reserve for a period of 6 years, on 18 September 1979, in the Delayed Entry Program.  He then enlisted and entered active duty in the Regular Army (RA) for a period of 4 years on 23 October 1979.  The applicant was assigned overseas and served in the Far East Pacific Command in the Republic of Korea from
12 May 1981 through 7 May 1982.  On 14 December 1982, the applicant extended his 4-year enlistment in the RA a period of 21 months and his expiration term of service (ETS) date was established as 22 July 1985.  The applicant completed the 26-week International Business Machines (IBM) 360 Repairer course and was awarded MOS 34K (IBM 360 Repairer) on 13 July 1983.

4.  The applicant's military personnel records contain a DA Form 4187 (Personnel Action) that shows the applicant’s duty status was changed from ordinary leave to confined civil authorities, effective 1600 hours, 2 July 1984.

5.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Enlisted Records and Evaluation Center, U.S. Army Deserter Information Point, Fort Benjamin Harrison, Indiana, letter, dated 26 September 1988, subject:  Soldier Confined by Civilian Authorities.  This document shows the Commander, 2nd Armored Division, Fort Hood, Texas, was advised information had been received that indicated the applicant, (who was then) assigned to Headquarters and Headquarters Company, 2nd Combat Service Support Command, 2nd Armored Division, Fort Hood, Texas, was sentenced to serve 75 years in confinement on 10 April 1984; was received in the Texas Department of Corrections on 2 July 1984 for aggravated sexual assault; and was confined in the Beto 1 Unit, Tennessee Colony, Texas.  This document also shows the applicant was to serve a minimum of 12 years and 9 months in confinement, and his projected minimum release date was 14 December 2010.  The commander was also asked to investigate the applicant’s status and, if appropriate, to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-5 (Conviction by Civil Court).

6.  The applicant's military personnel records contain a copy of The State of Texas versus [Applicant’s Name], in the 27th District Court of Bell County, Texas, Judgment, Number 32,___.  This document shows, in pertinent part, on 28 June 1984, the Court considered and adjudged the applicant to be guilty of aggravated sexual assault committed on 23 March 1984, as charged by indictment; on
29 June 1984, the court announced the applicant’s sentence; and the applicant’s punishment was assessed at confinement in the Texas Department of Corrections for 75 years and a fine of $10,000.00.

7.  On 22 November 1988, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5, based on civilian conviction.  The commander stated that the reason for the proposed separation was the applicant’s civilian conviction for aggravated sexual assault and he was recommending the applicant receive a general discharge under honorable conditions.  The applicant was also advised of his rights.

8.  The applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers, waived a personal appearance before an administrative separation board, waived consulting counsel and representation by counsel, and elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged that, as the result of the 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 law and that he may expect to encounter substantial prejudice in civilian life.  He acknowledged that he understood he may make application to the Army Discharge Review Board or the ABCMR for an upgrade of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.

9.  On 22 November 1988, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be separated from the U.S. Army prior to his ETS under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5, based on civilian conviction for aggravated sexual assault.  The commander also stated the applicant did not have the potential for useful service under conditions of full mobilization because he was serving a 75-year prison term.  The company commander recommended approval of the separation action and that the applicant be separated with a general discharge under honorable conditions.

10.  On 28 November 1988, the battalion commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 
14-5, based on civilian conviction.

11.  On 28 November 1988, the colonel serving as the general court-martial convening authority and the authorized separation authority in the applicant’s case approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5, based on civilian conviction.  The separation authority determined the applicant had no potential for useful service under conditions of full mobilization and directed the applicant be issued a General Discharge Certificate.  Accordingly, the applicant was discharged on 7 December 1988.

12.  The applicant's military personnel records contain a copy of Headquarters, 2nd Armored Division, Fort Hood, Texas, Orders 230-12, dated 29 November 1988, that show the applicant was reduced in rank from sergeant (SGT)/pay grade E-5 to private (PVT)/pay grade E-1, effective 29 June 1984, under authority of Army Regulation 600-200 (Enlisted Personnel Management System).

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, based on civilian conviction with the separation code "JKB."  At the time of his discharge the applicant had completed 4 years, 8 months, and 20 days of net active service during the period of service under review.  Item
18 (Remarks), in pertinent part, contains the entry “Extension of service was at the request and for the convenience of the government.”  Item 29 (Dates of Time Lost During This Period) contains the entry “840702-850722; 850723-881207” (i.e., 2 July 1984 to 22 July 1985 and 23 July 1985 to 7 December 1988).  Item 21 (Signature of Member Being Separated) contains the entry “Not Available For Signature.”

14.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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

16.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This document shows, in pertinent part, that action will be taken to separate a member 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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge, if such is merited by the Soldier's overall record.
	
17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKB” as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-12b, based on civilian conviction.

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was a good Soldier, he was discharged for a civilian conviction that was the result of actions that were out of his character, and an upgrade of his discharge will allow him to receive government benefits.

2.  Notwithstanding the applicant’s contention that he was a good Soldier, the evidence of record shows that during the applicant’s period of military service under review he was found guilty of aggravated sexual assault committed on
23 March 1984 and sentenced to confinement in the Texas Department of Corrections for 75 years and a fine of $10,000.00.  In addition, the applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.  Therefore, in view of the foregoing, the applicant provides insufficient evidence to support his contention that he was a good Soldier.  The evidence of record also shows the applicant’s record of service during the period of under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, based on civilian conviction was proper and equitable and in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.

4.  The ABCMR does not grant relief solely for the purpose of making an applicant eligible for government benefits.

5.  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.

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)                                         AR20090003148



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ABCMR Record of Proceedings (cont)                                         AR20090003148



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