IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014536 


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 discharge.

2.  The applicant states that he was young at the time and made a few judgment calls while stationed in Germany which caused him to lose and forfeit his career and he has regretted his actions since.  As he was charged in June 1990, he fell into a state of depression and he was truly ashamed.  He never intended to cause anyone harm and he is very sorry for his part of the incident.  He was threatened by one of the other accused Soldiers and learned the hard way not to trust people.  He was also mistakenly told that his discharge would be upgraded after a period of 8 years but learned that his case has to be reviewed before a decision is made.  He adds that after his separation, he lived in Germany where he was married, raised a family, and gained employment.  However, the current job situation in Germany is unfavorable and he thinks an upgrade of his discharge may change his situation and open up opportunities.

3.  The applicant did not provide any additional documentary evidence 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 records show he was born on 16 February 1968 and enlisted in the Regular Army (RA) on 9 July 1986 at the age of 18 for a period of 3 years. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31M (Multichannel Telecommunications System Operator).  He also executed a 2-year reenlistment on 11 April 1989 and he attained the rank/grade of specialist four (SP4)/E-4.

3.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Germany from 21 January 1987 through 6 February 1990.  Item 9 (Awards, Decorations, and Campaigns) of the same form shows he was awarded the Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 6 July 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully striking another Soldier on the face with his closed fist on or about 30 May 1989.  His punishment consisted of 7 days of restriction and extra duty.

5.  On 21 June 1990, the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) conducted an investigation into allegations involving three Soldiers: Soldier W, Soldier J, and the applicant.  The CID report shows that on the night of 20 June 1991, a female Soldier was drinking beer in the dining hall and having a good time.  Several Soldiers present considered her actions flirtations.  Soldier W was intrigued and invited her to his room.  Later that night, the female Soldier went to Soldier W's room.  Once in the room, and after engaging in consensual sexual intercourse with the female Soldier, Soldier W departed the room to use the latrine and met with the applicant and another Soldier, Soldier J, in the hallway.  During the consensual act, the applicant and Soldier J overheard the act between the female Soldier and Soldier W and saw Soldier W leaving the room.  Soldier J entered the room where the female Soldier was waiting for Soldier W's return, grabbed her, attempted to kiss her, and forced her down on a cot.  Soldier J pulled down his shorts and attempted to engage in sexual intercourse with the female Soldier.  She was protesting and attempting to stop Soldier J's advances.  Soldier W then returned from the latrine and entered the room and found Soldier J and the female Soldier on the bed.  Soldier W and Soldier J then departed the room.  The applicant, who was then encouraged by Soldier W to enter the room, entered and found the female Soldier sitting on the bed.  He forced her down on the cot and attempted to have sexual intercourse with her.  She protested and resisted his advances.  The applicant then departed the room.  Soldier W then provided a false sworn statement in which he denied any knowledge of Soldier J and the applicant attempting to rape the female Soldier.

6.  On 12 July 1990, court-martial charges were preferred against the applicant for one specification of attempted rape on or about 20 June 1990 and one specification of committing an indecent act with a female Soldier by fondling her b----- and v------ area, forcing her legs apart, and forcefully rubbing his p---- on her v---- and v------ area.

7.  On 12 November 1990, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further elected not to submit a statement on his own behalf.

9.  On 13 November 1990, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.


10.  On 24 November 1990, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of 
Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 7 December 1990, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed 4 years, 4 months, and
29 days of creditable active military service.

11.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 a general, under honorable conditions discharge.

2.  The evidence of record shows the applicant was 18 years of age at the time of his enlistment and 22 years of age at the time he committed the offense that led 

to his voluntary discharge.  However, there is no evidence that the applicant was any less mature than other Soldiers who successfully and honorably completed their obligated term of service.

3.  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.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Furthermore, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  He did not submit evidence that would satisfy this requirement.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions 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)                                         AR20090014536



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ABCMR Record of Proceedings (cont)                                         AR20090014536



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