IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003267 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he served his country honorably for 10 years and then for about 10 seconds he took indecent liberties while drunk at a party.  He contends that he has paid dearly for his action and has lived with this for 24 years.  Since his separation from the Army, he has completed his 5-year treatment program.  He states that his guilty plea was changed to not guilty and the case was dismissed.  He further states that for the last 24 years he has had a perfect work record and has stopped drinking.  He has lived an honest life dedicated to helping others.  He now wants to qualify for Department of Veterans Affairs (VA) medical benefits and asks that his application be considered based on his life while in the Army and the steps he has taken since his discharge.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a certificate for award of the Army Commendation Medal, orders awarding him the Army Good Conduct Medal, a Certificate of Achievement, four letters of appreciation/
commendation, three enlisted evaluation reports, two service school academic evaluation reports, a Superior Court of the State of Washington Request for Dismissal, and a letter to the recruiting officer.



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.  On 11 February 1975, the applicant enlisted in the Regular Army.  He served through a series of assignments and attained the rank of staff sergeant, pay grade E-6, on 4 August 1982.

3.  On 27 June 1984, the applicant was convicted in civilian court of one offense of indecent liberties with a female child under the age of 16 years and placed on probation for 5 years.

4.  On 12 July 1984, the applicant's commander notified him that because of his civil conviction, the commander was required to consider him for elimination from the service.  The commander advised the applicant of his right to consult with an attorney and that he may be represented by an officer of the Judge Advocate General's Corps or by a civilian attorney at no expense to the government.

5.  On 16 July 1984, the applicant acknowledged that he had been accorded the opportunity to consult with appointed counsel and was advised of the basis for the contemplated separation action due to conviction by civilian court.  The applicant requested consideration of his case by a board of officers.   He requested to appear before such a board and to be represented by counsel.

6.  On 23 July 1984, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for conviction by civil court of an offense carrying a punitive discharge under the Manual for Courts-Martial.

7.  On 17 December 1984, a board of officers convened to consider the applicant for elimination under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant and his counsel were present.  The applicant testified that he had committed the offense and was put in jail and had to see a probation officer twice a month.  He was enrolled in a therapy program.  He asked the board to consider his past history and to give him a second chance.  The board found the applicant to be undesirable for retention in the service and recommended that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 28 December 1984, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.  Accordingly, on 7 January 1985, the applicant was discharged under other than honorable conditions.  He had completed 9 years, 10 months, and 27 days of creditable active service.

9.  On 15 December 1987, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and advised him that his request had been denied.

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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

11.  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.

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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has paid dearly for his actions and has lived with this for 24 years.  He believes his 10 years of military service and good post-service conduct qualify him for an upgrade.  He further contends that since his guilty plea was changed to not guilty and the case was dismissed, his military discharge should be upgraded to honorable.

2.  The record shows that the applicant was convicted in civilian court and that he was placed on probation for 5 years.  Based on his compliance with orders from the court, his plea was subsequently changed and the case dismissed.  However, this does not mean that he did not commit the offense for which originally convicted and sentenced.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's desire to obtain VA benefits is not an appropriate basis for upgrading his discharge.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090003267



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ABCMR Record of Proceedings (cont)                                         AR20090003267



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