IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011982 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge.

2.  The applicant states that he overcame the disabling effects of his childhood polio and fulfilled a lifelong dream of enlisting in the Army.  While he had experienced prejudice because of his disability in the past, he never experienced prejudice of the level that he encountered from his commander.  He explains that his commander told him that when he reviewed his permanent physical profile, that he strongly recommended that he take a medical discharge.  When he declined to request a medical discharge, his commander told him that he would eliminate him from his Army.

3.  Court-martial charges were preferred against him for an offense he did not commit and during the trial not one witness came forward to testify against him.  The Army used a paper trail to make its case against him since the Army could not prove he was having a sexual relationship with a woman who was not his wife.

4.  During his trial, he was offered a general discharge which he turned down because he believed he deserved an honorable discharge.  His commander told him that he would regret that decision.

5.  The applicant details his accomplishments while on active duty and his post-service accomplishments.

6.  The applicant does not provide any additional documents 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 military records show that he enlisted in the Regular Army on 25 April 1978, was awarded the military occupational specialties of personnel administration specialist and stock control and accounting specialist, and was promoted to pay grade E-6.

3.  On 22 February 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order and for being disrespectful in language toward a superior noncommissioned officer.

4.  On 16 June 1988, a military police report was initiated for an allegation of adultery against the applicant.  That report was generated by a woman who alleged that the applicant misrepresented himself to her as unmarried which led to a sexual relationship.  She filed a complaint against the applicant when the applicant's mother informed her that the applicant was married.

5.  On 31 January 1989, the applicant was given a mental status evaluation and was determined to be mentally responsible.

6.  On 2 March 1989, the applicant again accepted NJP for two specifications of failure to go to his appointed place of duty.

7.  On 2 March 1989, the applicant's commander initiated a bar to reenlistment against him.  His commander cited the applicant's two NJPs as a basis for the bar to reenlistment, but also stated that the applicant had failed his skill qualification test (SQT), had been counseled repeatedly for being late for duty, and had a problem with priorities and concentrating on his job.  The applicant did not submit a statement in his own behalf when given the opportunity to do so and the bar to reenlistment was approved.

8.  On 1 June 1989, a psychiatrist in the Community Mental Health Service wrote a letter concerning the applicant.  The psychiatrist stated that the applicant had been admitted for evaluation after exhibiting bizarre behavior and apparent suicidal ideations and threats.  The psychiatrist stated that the applicant had a minor psychiatric disorder (adjustment disorder with mixed emotional features), but also displayed many pathological personality characteristics which, while not sufficiently cohesive or so severe as to warrant the diagnosis of a personality disorder, nevertheless resulted in a great deal of self-defeating and indirect self-injurious behavior.

9.  On 13 June 1989, the applicant accepted NJP for the third time for wrongfully having sexual intercourse with a woman not his wife on divers occasions from 21 May 1988 to 11 June 1988; engaging in conduct to bring discredit upon the Armed Forces by promising and failing to buy a car, a house, and a diamond ring for the woman with whom he was having sexual intercourse; promising to marry the woman with whom he was having sexual intercourse; and by promising and failing to pay the down payment on a house he contracted to buy.

10.  On 29 June 1989, the applicant's commander notified him of his intent to recommend his separation due to his continual misconduct and of his rights in conjunction with that recommendation.  The applicant elected a board of officers to consider his case.

11.  On 2 August 1989, the applicant was given a letter of reprimand (LOR) for the misconduct for which he received NJP on 13 June 1989.

12.  On 26 September 1989, a board of officers was convened.  The applicant was represented at the hearing by legal counsel.  During the board of officers' proceedings, the following was recorded:  "After a lengthy discussion concerning whether the sworn statements should be admitted as opposed to witnesses appearing in person to testify, the board president said after he and the board members had reviewed the statements, he would make a determination.  The board president ruled that the physical presence of the individuals who made the sworn statements would neither enhance nor detract from these proceedings, therefore, the statements will stand alone.”

13.  On 2 October 1989, the board of officers found that the applicant committed misconduct and that rehabilitation was not possible.  The board of officers recommended that the applicant be discharged with a UOTHC discharge.
14.  On 13 October 1989, the applicant submitted a rebuttal to the board of officers' findings and recommendation.  In that rebuttal the applicant points out his accomplishments while on active duty, talks about how he had to overcome his polio to enlist in the Army, and stated that his son had a chronic illness (asthma) which requires daily medication.  The applicant asked that he be given a general discharge and not a discharge UOTHC.

15.  On 24 October 1989, the convening authority directed that the applicant be discharged UOTHC for misconduct.

16.  Accordingly, on 9 November 1989 the applicant was discharged UOTHC for misconduct.

17.  Army Regulation 635-200 (Personnel Separations) 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 include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is 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 regulation.

18.  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 accepted NJP on three occasions for wrongfully having sexual intercourse with a woman not his wife on divers occasions from 21 May 1988 to 11 June 1988; engaging in conduct to bring discredit upon the Armed Forces by promising and failing to buy a car, a house, and a diamond ring for the woman with whom he was having sexual intercourse; promising to marry the woman with whom he was having sexual intercourse; promising and failing to pay the down payment on a house he contracted to buy; two specifications of failure to go to his appointed place of duty; disobeying a lawful order; and being disrespectful in language toward a superior noncommissioned officer.

2.  In addition to the three NJPs, the applicant was given an LOR and was barred from reenlistment due to his repeated misconduct.

3.  As for the applicant's duty performance, his commander stated in the applicant's bar to reenlistment that "the applicant had failed his SQT, had been counseled repeatedly for being late for duty, and has a problem with priorities and concentrating on his job."  These comments do not paint a picture of a good Soldier who had an isolated lapse of judgment.

4.  There is no evidence to support the applicant's contention that his commander discriminated against him due to his polio.  However, if his commander did, in fact, say what the applicant contends he said, it would appear that his commander was attempting to separate the applicant from active duty with the least amount of harm to him.  The applicant states his commander asked him to accept a medical discharge which would have been honorable and the applicant states that during the "trial" his commander offered to give him a general discharge which would have been under honorable conditions.  By the applicant's refusal to accept those separations, he ended up with a discharge UOTHC.

5.  While it is commendable that the applicant overcame his polio to serve in the Army and it is regrettable that his son has asthma, these facts do not provide grounds to upgrade a properly-issued discharge.

6.  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)                                         AR20090011982



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ABCMR Record of Proceedings (cont)                                         AR20090011982



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