IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090007250 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge given the length of time since his separation.

2.  The applicant states prior to committing his crime, he was beaten and raped by two fellow roommates.  He further states that he reported the incident to a sergeant.  The sergeant subsequently got him drunk and raped him.  The applicant states no one would believe him, so he kept it to himself.

3.  The applicant states that no military doctor had seen him for the incident and that he did not get counseling until he was locked up in prison. 

4.  The applicant provides no additional documentation in support of this case.

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 (RA) on 9 April 1980 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's court-martial charge sheet is not available for review.  However, evidence shows that charges were preferred against him of one specification of sodomy with a child under the age of sixteen years and one specification of indecent, lewd, and lascivious acts with a child under the age of sixteen years.

4.  On 16 December 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide a statement in his own behalf.

5.  On 6 January 1981, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 15 January 1981, shows the applicant underwent a mental evaluation by a medical physician that determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.  The physician remarked that the applicant admitted to having to having 2 years of depression and that the applicant refused to discuss the incident that culminated in his discharge from the military. 

7.  On 19 January 1981, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed 9 months and 11 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

9.  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.  

10.  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 his discharge should be upgraded to an honorable discharge given the length of time since his separation.  He further stated that he was beaten and raped by two fellow roommates and a sergeant.  
There is no evidence in his records and he has not provided any evidence that shows he was beaten and raped by two fellow roommates or a sergeant.  Unfortunately, in the absence of evidence of record or of any evidence submitted by the applicant there is an insufficient basis to support this argument.  Furthermore, evidence of record shows that he voluntarily requested to be separated from the military in lieu of court-martial.  Therefore, there is no basis for granting the applicant's requested relief.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he had charges preferred against him for committing sodomy with a child under the age of sixteen and committing indecent, lewd, and lascivious acts with a child under the age of sixteen years before his separation.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a 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.



      __________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)                                         AR20090007250



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ABCMR Record of Proceedings (cont)                                         AR20090007250



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