IN THE CASE OF:	  

		BOARD DATE: 19 November 2009

		DOCKET NUMBER:  AR20090011441 


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 other than honorable conditions discharge to a general, under honorable conditions or an honorable discharge.

2.  The applicant states that his discharge should be reviewed.  He adds that he realizes that his actions were not in the best interest of the Army; however, fraternization with a student who would later become his wife for 12 years should have warranted a general, under honorable conditions discharge instead of an under other than honorable conditions discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 January 1985, 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 record shows he enlisted in the Regular Army (RA) for a period of 3 years on 4 March 1977.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 05C (Radio Telephone Operator).  He was honorably discharged on
19 September 1979 for the purpose of immediate reenlistment and he executed a 4-year reenlistment on 20 September 1979, followed by a 3-year reenlistment on 7 September 1983.  The highest rank/grade he attained during his service was sergeant (SGT)/E-5.

3.  The applicant’s record further shows he served in Hawaii from on or about 25 July 1977 to on or about 17 January 1980 and Korea from on or about 15 February 1980 to on or about 10 March 1981.  His awards and decorations include the Army Service Ribbon, Army Good Conduct Medal, Overseas Service Ribbon, Noncommissioned Officers Professional Development Ribbon (2nd Award), and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 December 1980 for assaulting a sergeant by grabbing him about the neck on or about 20 September 1980 and disobeying a lawful order from a superior noncommissioned officer on or about 20 September 1985.  His punishment consisted of a forfeiture of $170.00 pay for one month, and 14 days of restriction and extra duty (both suspended for 60 days).  However, on an unknown date shortly thereafter, the suspension of punishment to restriction and extra duty was vacated and the unexecuted portion of the punishment was ordered executed; and

	b.  on 9 September 1981, for twice disobeying a lawful order by entering the female rooms in a building at Fort Sill, OK, on or about 29 August 1981.  His punishment consisted of a forfeiture of $174.00 pay and 14 days of restriction.

5.  On 20 October 1982, the applicant’s battalion commander approved a request for removal of a previously imposed bar to reenlistment against the applicant.  The facts and circumstances surrounding this bar action are not available for review with this case.  

6.  On 16 December 1983, the applicant’s immediate commander disapproved awarding the applicant a second award of the Army Good Conduct Medal.  He cited the applicant’s prior NJP for assault and disobeying lawful orders. 

7.  On 30 May 1984, the applicant received a General Officer Letter of Reprimand for misconduct on 21 April 1984 for operating a vehicle while drunk and being subsequently found guilty by State Court on 22 May 1984 of driving while intoxicated.  

8.  On 11 December 1984, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his civilian misconduct of operating a vehicle while drunk, one instance of a dishonored check at the Post Exchange, and one letter of indebtedness from a telephone company.  His Bar to Reenlistment Certificate was ultimately approved by the approval authority on
18 December 1984.

9.  On 19 December 1984, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for twice wrongfully having sex with a female trainee Soldier, not his wife, on or about 17 November 1984 and on or about 6 December 1984; violating a lawful regulation by unlawfully kissing a female Soldier in a training status on or about 2 November 1984; and violating a general regulation by allowing Soldiers in trainee status to drink in his office and home on numerous occasions in 1984.  His punishment consisted of a reduction to specialist four (SP4)/E-4, a forfeiture of $162.00 pay per month for 2 months, and 30 days of extra duty and restriction.  Additionally, on the same date, the applicant appealed his punishment to the next higher commander; however, on 30 December 1984, his appeal was denied.

10.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 22 January 1985 under the provisions of paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct - pattern of misconduct with an under other than honorable conditions characterization of service.  This form also shows he completed a total of 7 years, 10 months, and 19 days of creditable active service and he was discharged in the rank/grade of private (PV1)/E-1.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.


12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern 
showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

13.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

14.  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 under other than honorable conditions discharge should be upgraded to either a general, under honorable conditions or an honorable discharge.

2.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 22 January 1985 under the provisions of paragraph 14-12(b) of Army Regulation 635-200 for misconduct - pattern of misconduct with an under other than honorable conditions discharge.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were presumably fully protected throughout the separation process.  It is also presumed that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  The applicant’s contention that he fraternized with a woman who ultimately became his wife was carefully considered.  However, the applicant was a married SGT and leader of Soldiers, when he betrayed their trust and used his rank or position for personal gain.  Additionally, the available evidence shows a military career marred with misconduct, including a General Officer Letter of Reprimand, three instances of NJP, and a Bar to Reenlistment Certificate.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090011441



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ABCMR Record of Proceedings (cont)                                         AR20090011441



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