IN THE CASE OF:	

		BOARD DATE:	 13 April 2010 

		DOCKET NUMBER:  AR20090016796 

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 general discharge to an honorable discharge.

2.  The applicant states he was discharged from the military and that he was not afforded due process.  He states he never received a court-martial or Article 15.  He is requesting an honorable discharge, because he cannot get a job.  He would like to return to the military to serve his country.  He also states that his discharge was improper because it was based on one isolated incident that may or may not have occurred during his childhood. 

3.  The applicant provides no documentation 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 enlisted in the Regular Army, on 21 January 1992.  He was trained in and awarded the military occupational specialty of 11B, (Infantryman).  The highest rank he attained was Specialist, E-4.  

3.  On 27 January 1994, the applicant was apprehended, interviewed, and read his rights due to being a suspect of sodomy and incest, based on a sexually explicit letter written by his sister, stating that she had been sexually abused by the applicant.

4.  On 9 June 1994, a U.S. Army Criminal Investigation Command (USACIDC, also known as CID), Report of Investigation was completed by the U.S. Army CID, Fort Belvoir, Virginia.

5.  The summary of the report stated that it was revealed the applicant sodomized and performed other sexual acts with his sister, ten to fifteen times over a 5 year period, before and after he joined the Army.  

6.  On 10 June 1994, a CID Report of Investigation – 2D Supplemental revealed that the applicant admitted to engaging in consensual anal sodomy with his girlfriend, while on active duty.

7.  On 1 July 1994, the unit commander notified the applicant that he was initiating action to separate him for misconduct based on the applicant's commission of a serious offense.  The applicant acknowledged notification on the same date.

8.  An undated statement shows the applicant acknowledged he had consulted with counsel and that he had been advised of his rights.  He acknowledged that he had not been subjected to any coercion.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he were issued less than an honorable discharge.  He did not submit any statements on his behalf.

9.  On 29 July 1994, the separation authority approved the applicant's separation action and directed that he be discharged in accordance with Army Regulation 635-200, chapter 14, paragraph 14-12c due to misconduct with a general discharge.  On 11 August 1994, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 2 years, 6 months, and 21 days of active service.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested an upgrade of his general discharge so he may be eligible to reenter the military.

2.  A CID investigation conducted on 9 June 1994 revealed the applicant sodomized and performed other sexual acts with his sister, before and after he joined the Army.  The applicant was administratively discharged from active duty based on the findings of misconduct.  Therefore, the action to discharge the applicant with a general discharge is deemed appropriate.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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)                                         AR20090016796



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ABCMR Record of Proceedings (cont)                                         AR20090016796



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