IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090010416 


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 discharge to an honorable discharge.

2.  The applicant states the following:

     a.  He was singled out by members of his unit who gave false information to an investigator because he had reported drug use in the barracks and named members of the unit who were using drugs.

     b.  He was friends with the father of the child he allegedly molested and they remained friends because the father did not believe the allegations or the stories members of the unit were telling.

     c.  Charges against him were dropped and he was told he was given an under other than honorable conditions discharge to get him out of his unit for his own protection.

3.  The applicant provides:

* a copy of a DD Form 214 (Report of Separation from Active Duty) for his first enlistment
* a copy of a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States)
* a Report of Psychological Evaluation
* a copy of a completed Form SSA-5002 (Report of Contact)
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 3 October 1967.  He was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).  He received an honorable release from active duty on 24 September 1970 after serving 2 years, 11 months, and 22 days.  His service includes 1 year, 10 months, and 22 days of service in the Republic of Vietnam.  He again enlisted in the RA on 9 March 1971 and continued his service in MOS 12B.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows: 

* in item 38 (Record of Assignments) he was dropped from the rolls as a deserter on 13 December 1971 and again on 24 April 1972
* in item 38 he was confined from 26 May 1972 through 26 July 1972
* in item 42 (Remarks) he was found guilty of burglary by a civil authority and sentenced to 5 years of probation
* in item 44 (Time Lost) he was absent without leave (AWOL) and confined during multiple periods with a total of 341 days of time lost

4.  A DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction) shows the applicant was convicted of theft by a special court-martial on 26 May 1972.  

5.  Special Court-Martial Order Number 468 shows he was convicted of AWOL for the period 10 December 1971 through 22 March 1972.  

6.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* on 23 March 1973, for wrongfully appropriating a quarter-ton vehicle
* on 16 April 1973, and again on 3 July 1973, for behaving with disrespect toward a superior commissioned officer

7.  On 26 and 28 March 1973, the applicant underwent a psychiatric evaluation at the request of his commander because of alleged homosexual advances toward other members of his company.  The evaluation indicated the following:

* the applicant was not mentally ill and did not qualify for disposition via medical channels
* he was fully capable of participating in administrative action involving him and of assisting counsel in his own defense
* he was fully capable of distinguishing right from wrong and adhering to the right 

8.  The applicant's record includes a statement made by a Soldier in his company alleging the applicant made sexual advances toward the Soldier, on 13 June 1973.  

9.  An incident report shows, on 13 October 1974, the applicant was reported to have molested another Soldier's son in the company barracks.

10.  The applicant signed DA Form 3881 (Rights Warning Procedure/Waiver Certificate) acknowledging he was suspected of sodomy and indecent acts with a child, indicating that he understood his rights, and agreeing to discuss the offense under investigation.

11.  On 14 October 1974, the applicant signed DA Form 2823 (Sworn Statement) admitting to molesting another Soldier's son.

12.  On 16 October 1974, he was charged with committing sodomy and taking immoral, improper, and indecent liberties with a child of the age of 6 years.

13.  On 4 November 1974, he was charged with an additional count of sodomy and with committing indecent acts against two Soldiers.  

14.  A Sanity Board convened on 22 November 1974 and stated the following in their formal opinion:

* the applicant stated he did not look at the confession before he signed and denied the charges
* he stated he knew the charges, understood he might go to jail, and could participate in his own defense
* at the time of the alleged offense the applicant was able to distinguish right from wrong and adhere to the right
* the applicant had sufficient mental capacity to understand the charges against him and cooperate in his defense

15.  On 6 January 1975, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

16.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

17.  On 9 January 1975, the separation authority approved the applicant's request for discharge and directed that he receive a DD Form 258A (Undesirable Discharge Certificate).  On 29 January 1975, the applicant was discharged accordingly.  He completed a total of 6 years, 4 months, and 21 days of creditable active military service with 341 days of time lost.

18.  On 10 August 1977, the Army Discharge Review Board (ADRB) informed the applicant that his application to upgrade his discharge was denied.

19.  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.

20.  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's contention that his discharge should be upgraded was carefully considered and not supported by the evidence in this case.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline, which includes 341 days of time lost due to AWOL and confinement, two convictions by special court-martial, and three NJPs, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090010416





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ABCMR Record of Proceedings (cont)                                         AR20090010416



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