IN THE CASE OF:	

		BOARD DATE:	  26 January 2010


		DOCKET NUMBER:  AR20090013080 


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 general discharge under honorable conditions be upgraded to an honorable discharge.  He requests that his military service records be the only basis for determining the character of his service.

2.  The applicant states he wants his discharge upgraded to an honorable discharge for the purpose of accessing benefits from the Department of Veterans Affairs (VA) and to further his civilian career.  He states he has provided copies of items from his military service.  He states his service to the military and the country was exemplary and he excelled in his assignments.  He states he was accountable and had duty responsibilities above his rank of specialist/pay grade E-4.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 August 1984, four personal references, and 61 pages from his military personnel records jacket (MPRJ) 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 personnel records show he enlisted in the Regular Army on 16 August 1978 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 75C (Personnel Management Specialist).  He reenlisted on 5 May 1982 for a period of 3 years.

3.  The applicant was promoted to specialist four/pay grade E-4 on 15 February 1980.  He completed a 14-month tour of duty in the Republic of Korea on 27 June 1981.

4.  On 7 March 1983, the applicant was confined by civilian authorities pending charges for kidnapping, aggravated assault, and sexual battery.

5.  On 8 September 1983, the applicant was tried and found guilty of kidnapping and sexual battery.  He was sentenced to 40 years' imprisonment for kidnapping and 30 years imprisonment for sexual battery with the sentence for sexual battery to run consecutively with the sentence for kidnapping.

6.  On 26 April 1984, the applicant's commander notified him action was being recommended to separate him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) due to his conviction by civilian authorities for kidnapping and sexual battery.  The commander further notified him the least favorable separation he could receive was a discharge under other than honorable conditions.

7.  The commander advised the applicant of his right to have his case considered by a board officers, to appear in person before a board officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and to request his case be presented before a board of officers.

8.  On 26 April 1984, the applicant submitted a statement wherein he requested the right to consult with counsel, have his case considered by a board of officers, and representation by counsel.  He submitted statements in his own behalf and he waived a personal appearance before a board officers.

9.  The applicant also acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

10.  On 30 April 1984, the applicant's commander recommended him for discharge due to the commission of a serious offense.  The commander stated the applicant was incarcerated and had been sentenced to two consecutive sentences totaling 70 years for kidnapping and sexual battery.  The commander also recommended waiver of any requirement concerning a rehabilitative transfer or counseling.

11.  On 4 June 1984, a board of officers was convened.  The board of officers recommended the applicant be discharged for misconduct and that he receive a general discharge under other than honorable conditions.

12.  On 22 June 1984, the board proceedings were reviewed by the Staff Judge Advocate and found to be legally sufficient with the exception of the type of discharge recommended.  The Staff Judge Advocate suggested that the board clarify the type of discharge recommended in the proceedings.

13.  On 16 July 1984, the board of officers was reconvened to clarify the recommendation of the type of discharge.  The board recommended a general discharge.

14.  On 16 August 1984, the appropriate authority approved the recommendation for discharge under the provisions of chapter 14, Army Regulation 635-200, and directed the applicant be issued a General Discharge Certificate.

15.  On 22 August 1984, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of a civilian conviction.  He had completed two periods of service from 16 August 1978 to 4 May 1982 and from 5 May 1982 to 22 June 1984 that were characterized as honorable.  His period of service from 23 June 1984 to 22 August 1984 was characterized as under honorable conditions.  He had 531 days of time lost.

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  A letter, dated 15 June 2009, from the applicant's employer stated he had been employed with them since 12 March 2009.

18.  A letter, dated 21 July 2009, from the applicant's brother states he was reunited with the applicant in December 2008 after his release from prison.  He states his brother appears to be focused, driven, determined, and diligent to live a life that is above reproach.  He states his brother has a strong desire to build a new life, be successful, and become a productive citizen.

19.  In a letter, dated 15 June 2009, the president of the Out for Life Ministries states he has known the applicant for 7 months and has observed him to be a respectable young man who has a remarkable resilience to life.  He states the applicant is responsible, bright, and inquisitive with a desire to learn and achieve. 
He states he believes the applicant has a strong desire to build a new life, be successful, and become a productive and contributing member to society.

20.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation established policy and prescribed procedures for conditions that subjected a Soldier to discharge due to a conviction by a civil court.  A Soldier could be considered for discharge when initially convicted by civil authorities, or when action was taken that was tantamount to a finding of guilty if a punitive discharge was authorized for the same or a closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities included confinement for 6 months or more without regard to suspension or probation.  Initiation of separation action was not mandatory.  The immediate commander must have also considered whether the specific circumstances of the offense warranted separation.  A discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could have directed a general discharge.  An honorable discharge may have been approved by the commander exercising general court-martial jurisdiction or higher authority.

21.  Army Regulation 635-200 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable so he can access VA benefits and further his civilian career.  He contends his upgrade should be based on his prior military service.

2.  It is clear the seriousness of the charges the applicant was convicted of in civilian court would have subjected him to a punitive discharge if he had been charged under the military justice system.  In addition, he was sentenced to an aggregate of 70 years' imprisonment.  Therefore, it was appropriate to process him for separation under the provisions of chapter 14, Army Regulation 635-200.

3.  The applicant requested that his case be considered by a board of officers and that board was convened on 4 June 1984.  Under the provisions of chapter 14 it was normally appropriate to issue a discharge under other than honorable conditions.  The seriousness of the charges the applicant was convicted of would have clearly justified a discharge under other than honorable conditions.  Therefore, based on the board of officers' recommendation that the applicant receive a general discharge under honorable conditions, it is clear the applicant's record of previous service has already been considered in the determination of the characterization of his service.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  The charges the applicant was convicted of were of such a serious nature that they do not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  The applicant's post-service conduct after his release from prison is noted.  However, good post-service conduct alone is not a basis for upgrading a properly issued discharge.

7.  The ABCMR does not upgrade discharges solely for the purpose of establishing eligibility for benefits.  In addition, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for treatment or compensation benefits should be addressed to the VA.

8.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable.


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)                                         AR20090013080



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ABCMR Record of Proceedings (cont)                                         AR20090013080



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