IN THE CASE OF:	  

		BOARD DATE:	        8 October 2009

		DOCKET NUMBER:  AR20090008083 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states, in effect, that he takes full responsibility for his actions which formed the basis for his discharge.  He says that he was sexually molested as a child.  He continues that he has always been interested in law enforcement and cannot get a law enforcement job with an UOTHC discharge.  He wants to be a positive role model for his son and asks for an upgrade to allow him to be such a role model.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 records show that he enlisted in the Regular Army (RA) on 10 September 1987, he was awarded military occupational specialty (MOS) 95B (military police), and the highest rank/grade he held during his tenure of service was sergeant (SGT)/E-5. 

3.  On 25 June 1993, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully and wrongfully exposing his penis in an indecent manner to public view.

4.  On 9 September 1993, a board of officers convened to determine whether the applicant should be separated due to misconduct.  The board of officers found that the preponderance of evidence shows that the applicant did:

	a.  on or about 27 May 1993, indecently expose his penis to public view while sitting in his vehicle at the Youth Service Center at Fort Jackson, SC;

	b.  on or about 13 March 1992, indecently expose his penis to public view while sitting in his vehicle at the Fort Jackson Commissary parking lot;

	c.  in December 1989, indecently expose his penis to public view while in his bedroom at his Government quarters with the door open;

	d.  on or about 16 September 1990, made several obscene phone calls in which he repeatedly used indecent language; and

	e.  on or about 10 July 1993, destroy government property in the Fort Jackson housing area.

5.  The board of officers recommended that the applicant be discharged for misconduct, commission of a serious offense and that he be issued an UOTHC Discharge Certificate.

6.  The recommendation was approved by the proper authority.  Accordingly, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, with an UOTHC discharge on 15 October 1993.  He had 6 years, 1 month, and 6 days of active service.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph
14-12c applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrants separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial.

8.  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.

9.  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 has not claimed that there was any error in his discharge proceedings, and no error is noted.

2.  The applicant's repeated serious misconduct certainly warranted an UOTHC discharge.

3.  While it is unfortunate that the applicant was sexually molested as a child, this fact does not excuse his misconduct.  

4.  While it is commendable that the applicant desires to be a positive role model for his son, this desire is insufficient to warrant upgrading a properly-issued discharge.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.







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)                                         AR20090008083



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ABCMR Record of Proceedings (cont)                                         AR20090008083



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