IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090006567 


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 an upgrade of his under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states that he was under a lot of pressure at the time and made a bad choice.  He now wants to show that he has changed so he can serve again.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 13 August 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant’s records show he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the First Class Marksmanship Qualification Badge with Grenade Bar.

4.  On 12 August 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disorderly and indecently exposing himself to civilians on the street while a passenger in a car on or about 5 and 6 June 1982, driving someone else's vehicle without a driver's license on or about 5 and 6 June 1982, being drunk and disorderly after being told to leave by military police personnel on or about 16 July 1982, and failing to go at the time prescribed to his appointed place of duty on or about 28 July 1982.  His punishment consisted of a reduction to private/E-1, a forfeiture of $275.00 pay per month for 2 months, and 30 days of confinement in a Correctional Custody Facility.

5.  On 16 August 1983, the applicant was apprehended and imprisoned by civil authorities for indecent exposure and possession of marijuana.  He was released from prison on 12 March 1984.

6.  On 15 October 1984, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from a drug and alcohol appointment on or about 26 September 1984.  His punishment consisted of 14 days of restriction, 14 days of extra duty, a reduction to private/E-2 (suspended), and a forfeiture of 7 days of pay (suspended).

7.  On 21 November 1984, the applicant was convicted by a civil court for the civilian charges of two counts of enticing a child for indecent purposes and one count of public indecency.  He was sentenced to 3 years of imprisonment.

8.  On 12 December 1984, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his civil conviction and prior misconduct.  His bar to reenlistment was ultimately approved by his battalion commander.

9.  On 12 December 1984, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) for conviction by civil court for an offense involving moral turpitude.

10.  On 12 December 1984, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, if otherwise qualified, but declined submitting a statement on his own behalf.

11.  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

12.  On 12 December 1984, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by civil court.  The immediate commander further recommended an under honorable conditions (general) discharge.

13.  On an unknown date in June 1985, the applicant’s intermediate commander reviewed the recommended separation action and recommended approval of the applicant’s discharge with an under honorable conditions discharge.

14.  On 28 June 1985, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of conviction by civil court and directed he be furnished a General Discharge Certificate.  The DD Form 214 he was issued confirms he was discharged on 15 July 1985 with a character of service of under honorable conditions (general).  This form further confirms that the applicant completed 2 years, 8 months, and 16 days of creditable active military service.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and 

prescribed 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 desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of this regulation.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to honorable.

2.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions, received a bar to reenlistment, and was twice convicted by civil authorities, the second time for two counts of indecent exposure and one count of enticing a child for indecent purposes.  Accordingly, his chain of command initiated separation action against him due to his second civil conviction.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.


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)                                         AR20090006567



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ABCMR Record of Proceedings (cont)                                         AR20090006567



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