BOARD DATE: 1 June 2010
DOCKET NUMBER: AR20090020335
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 having mental problems due to the sudden death of his father in an airplane crash.
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 applicants military records show that he enlisted in the Regular Army on 9 August 1976, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4.
3. On 21 February 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 9 to 10 February and 11 to 12 February 1979.
4. On 6 May 1980, the applicant was convicted by a civil court of first degree rape and a first degree sexual offense in that he unlawfully, willfully, and feloniously ravished a woman by force against her will. He was sentenced to life imprisonment.
5. On 16 July 1981, a board of officers convened to determine whether the applicant should be separated due to misconduct conviction by civil court. In those proceedings a civilian law enforcement official testified that the applicant was the second in command of a motorcycle gang which used a shotgun to force a woman to submit to oral sex. The board of officers found the applicant unfit for continued military service and recommended that he be given a UOTHC discharge.
6. The transcript of the board of officer's hearing does not contain testimony stating that the applicant's father had recently died in a plane crash.
7. The appropriate authority approved the board of officer's recommendation. Accordingly, the applicant was issued a UOTHC discharge on 31 August 1981 for misconduct conviction by civil court.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-5 provides the authority to discharge an enlisted Soldier when initially convicted by civil authorities, when a punitive discharge would have been authorized for the same or a closely related offense under the Manual for Court-Martial, and the sentence by the civil authorities includes confinement for 6 months or more. When discharge is approved under this paragraph, a UOTHC discharge is normally considered appropriate.
9. Army Regulation 635-200, paragraph 3-7a 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant does not state he was innocent of the offenses which led to his civil conviction.
2. The applicant was convicted of two crimes of violence which were so serious that he was sentenced to life imprisonment.
3. Such misconduct certainly warranted a UOTHC discharge.
4. The applicant states he was having mental problems due to the sudden death of his father in an airplane crash. However, he has not submitting any evidence of this and there is no mention of his father's death in either his military personnel records jacket or board proceedings.
5. In view of the foregoing, there is no basis for granting the applicants 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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