IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090003724 


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 that his discharge be upgraded to honorable.

2.  The applicant states the other person involved later recanted her statements and wanted to withdraw the charges; however, the commander wanted to push forward the court-martial charges and a plea bargain was arranged.

3.  The applicant provides an extensive packet of documents from his official personnel file showing his accomplishments and awards as well the documentation related to the investigation into the alleged rape and his subsequent discharge.

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 enlisted in the Regular Army on 22 January 1985 and served continuously until 25 May 1994.  His last enlistment commenced on 4 November 1992.

3.  The record shows the applicant was married at the time of his initial enlistment and there is no indication of a legal separation or divorce of record.

4.  On 2 June 1992 the applicant received a formal reprimand for substantiated spousal abuse.

5.  Following a report that the applicant had raped Specialist (SPC) D---- S---- on 21 February 1994, an investigation was initiated in March 1994 with multiple statements being taken by a Special Agent S---- between the date of the incident and 24 March 1994.  At the time of the incident the applicant was a sergeant    (E-5).  
  
6.  In his sworn statement of 22 February 1994, Sergeant (SGT) J---- K---- stated that he was present during the initial altercation between the applicant and SPC S----.  He also stated that SPC S---- had been having an affair with the applicant for over a year and a half and he had been told by SPC S---- of previous incidents of physical abuse by the applicant.  He stated that he himself had not had intercourse with SPC S----.

7.  In her 22 February 1994 sworn statement, SPC S---- stated that she and the applicant had consensual sexual intercourse on 20 February 1994.  On 22 February 1994 she was having consensual sex with SGT K---- when the applicant saw them and got angry, became verbally abusive, and an altercation ensued.  SPC S---- states that after she calmed down, she went to the applicant's room to talk to him and at this point the applicant grabbed her, started hitting her and verbally abusing her.  He stripped off his clothes and raped her.  She states the applicant raped her repeatedly over a period of an hour.  She was able to escape by throwing the applicant's keys out the window and when the applicant went to retrieve them she escaped.  She states that she went to her room only to realize that she did not have her keys but did have the applicant's keys.  After taking the applicant's truck and driving to the motor pool to calm down she returned to the applicant's room and asked for her keys back.  The applicant would not return them but did unlock her door.  After unlocking her door the applicant proceeded to trash the room.  

8.  On 15 March 1994 SPC S---- submitted an amendment to her previous sworn statement.  This statement does not recant any of the previous statement related to the applicant and only added details on how she was able to leave the applicant's room.  She did amend her statement to recant that she had sexual intercourse with SGT K--- on the night of the incident.

9.  A 17 March 1994 sworn statement from Sergeant First Class P---- D---- Barker states that on the morning of 22 February 1994 he was approached by SPC S---- and told that the night before the applicant had raped and beaten her.  

10.  In a 22 March 1994 sworn statement, A---- W---- W---- described a fight between the applicant and SPC S---- in and around the barracks during the month of either September or October 1993.  The statement indicated that both Soldiers where hitting each other with closed fists and that when SPC S---- fell down, the applicant continued to hit and kick her.  This witness did not have any direct knowledge of the specific incident under investigation. 

11.  Additional statements are of record from several witness related to the relationship between the applicant and SPC S----.

12.  It was determined that there was sufficient evidence to prefer charges against the applicant.  On 25 April 1994 formal charges were preferred for violation of Article 109, destruction of government property; Article 117, provoking speech and/or gestures; Article 120, rape; Article 128, Assault consummated by battery; and Article 134 (four specifications), indecent assault.

13.  On 18 May 1994, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of at least one of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

14.  On 20 May 1994 the discharge authority approved the separation, directed the applicant be reduced to the lowest enlisted grade (E-1), and directed that the applicant be discharged under other than honorable conditions.

15.  On 25 May 1994 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10.  He had 9 years, 4 months, and 4 days of creditable service.  His awards are shown as the Army Commendation Medal, the Army Achievement Medal with four Oak Leaf Clusters, the Good Conduct Medal (2nd award), the National Defense Service Medal, the NCO Professional Development Ribbon, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars, and the Driver and Mechanic Badge.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it states at:

	a.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service;

		1)  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

		2)  Paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service";  

		3)  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

		4)  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and

		5)  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation.

	b.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for each of the charges of destruction of government property, provoking speech and/or gestures rape, assault consummated by battery; and indecent assault.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the other person involved later recanted her statements and wanted to withdraw the charges; however, the commander wanted to push forward the court-martial charges and a plea bargain was arranged.

2.  The applicant can be duly proud of his service prior to his last enlistment.  However, starting from the time of his 2 June 1992 reprimand through the remainder of his service his conduct was far from acceptable and clearly not warranting an honorable characterization of service.

3.  In addition to the specific incident that resulted in his discharge, the applicant was involved in at least two additional incidents as well as having received a formal reprimand for spousal abuse.

4.  There is no documentation to support the applicant's statement the SPC S---- recanted any of her statements related to the events of 22 February 1994 as they related to him.

5.  This individual, accused of several offenses, made what he describes as a plea bargain.  He now contends that the incident did not occur, which is contrary to the evidence of record.  His case is analogous to that of other individuals who accept a plea-bargain rather than risk more stringent sanctions in that he voluntarily deprived himself of any and all defenses.  That notwithstanding, his arguments are without merit.

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's service is appropriately characterized by the offenses for which he voluntarily requested discharge to avoid trial by court-martial and that characterization is commensurate with the applicant's record of military service for this last period of active duty. 





7.  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)                                         AR20090003724



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ABCMR Record of Proceedings (cont)                                         AR20090003724



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