IN THE CASE OF:
BOARD DATE: 4 May 2010
DOCKET NUMBER: AR20090018191
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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.
2. The applicant states he was not guilty of the charges that were brought against him. However, he has no evidence of his innocence other than his word and the names of the guilty parties. The applicant adds that he was a model Soldier and would have made a career of the Army if it hadn't been for this incident.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants 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 19 February 1980 and was awarded the military occupational specialty of cannon crewman.
3. On 7 April 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for possession of marihuana.
4. On 22 October 1981, charges were preferred against the applicant for committing an indecent, lewd and lascivious act by engaging in acts of sexual intercourse with a woman in front of other service members.
5. On 29 December 1981, the applicant requested discharge in lieu of court-martial for the good of the service. In that request he stated "I acknowledge that
I am guilty of the charge against me or of (a) lesser included offense therein which also authorizes a Bad Conduct or Dishonorable Discharge . . . I understand that if my request for discharge is accepted, I may be discharged under other than honorable conditions and furnished a UOTHC Discharge Certificate." The applicant was also provided the statistics for the number of discharges upgraded by the Army Discharge Review Board and this Board and informed that the statistics were provided to him so he would know "if, as is likely, you are issued a UOTHC discharge, in all likelihood, this discharge will remain with you for the rest of your life."
6. The applicant submitted a statement with his request for discharge. In that request he said that he got intoxicated and two members from his unit escorted him back to his barracks, and helped him undress and go to bed. Later that night a couple of fellows and a lady came into his room. When he got up to go to the bathroom, the lady got in his bed. They ended up having sex and she stayed in his bed for the night.
7. The applicant's request was approved by the appropriate authority. Accordingly, on 18 January 1982, the applicant was issued a UOTHC discharge for conduct triable by court-martial.
8. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. Refuting the applicant's contention that he was not guilty of the offense which formed the basis for his discharge, he stated "I acknowledge that I am guilty of the charge against me or of (a) lesser included offense which also authorizes a Bad Conduct or Dishonorable Discharge."
2. In addition, the applicant admitted having sex with the woman he found in his bed.
3. The applicant was also advised by counsel he may be issued a UOTHC discharged and he was provided the statistics for the number of discharges upgraded by the Army Discharge Review Board and this Board. Therefore, the applicant was well aware what his characterization of service could be if he requested discharge and it was highly unlikely that it would be upgraded.
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.
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