IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012073 


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 bad conduct discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he got kicked out of the Army as a result of a court-martial for pleading guilty to a sex offender crime.  He contends that after he was discharged from the Army he was put on probation.  He goes on to state that he was a scared young man and that he left Tacoma, WA and he started a new life in Memphis [TN].  In 2007, when he was stopped by the police he was told there was an outstanding warrant for his arrest.  He states that he went back to Tacoma, that he was placed in jail for 4 months, and that the judge released him to go back to his life in Memphis and continue to serve as a model citizen like he had been for the last 20 years.

3.  The applicant provides no documentary evidence 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 was born on 3 April 1967.  He enlisted in the Regular Army (RA) on 25 June 1985 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty (MOS) 13F (fire support specialist).

3.  On 13 August 1986, the applicant pled guilty to a civilian charge of committing indecent liberties with a minor and he was sentenced to 14 months confinement (suspended) and 24 months of community supervision.

4.  On 12 September 1986, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct (civil conviction).  The unit commander cited the applicant’s civil conviction as the basis for the separation action.

5.  On 12 September 1986, the applicant consulted with counsel, requested consideration of his case by a board of officers, requested a personal appearance, acknowledged that he might encounter substantial prejudice in civilian life if a general, under honorable conditions discharge were issued, and elected to submit a statement in his own behalf.  Records show the applicant requested an appointment with a Judge Advocate General (JAG) officer and after his appointment with JAG on 15 September 1986 he chose to submit statements in his own behalf.  The applicant failed to provide his statements within the given time frame.

6.  On 17 December 1986, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged with an under other than honorable conditions discharge on 29 December 1986 under the provisions of Army Regulation 635-200, paragraph 14-12, for misconduct (civil conviction).  He had served 1 year, 6 months, and 5 days of creditable active service.

8.  There is no indication in the available records which show the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 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, commission of a serious offense (military or civilian), 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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 evidence of record does not support the applicant's contentions that he received a bad conduct discharge and that he got kicked out of the Army as a result of a court-martial for pleading guilty to a sex offender crime.  Evidence of record shows he was discharged with an under other than honorable conditions discharge for misconduct due to a civil conviction (indecent liberties with a minor).  There is no evidence of record which shows he was convicted by a court-martial.

2.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted in the Army and he completed One Station Unit Training.
Additionally, good post-service conduct alone is not normally a basis for upgrading a discharge.

3.  Evidence of record shows the applicant was discharged for misconduct due to a civil conviction for a serious civil offense (indecent liberties with a minor).  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20090012073



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ABCMR Record of Proceedings (cont)                                         AR20090012073



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