IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20100000833 


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 honorable conditions (general) discharge to a fully honorable discharge and correction of the titling block of the U.S. Army Criminal Investigation Command (USACIDC, also referred to as CID) report to show he was convicted of "violating an act" instead of "adultery" and that this information be relayed to the National Criminal Information Center (NCIC) so his charge can be corrected in the NCIC record, which titles him for a crime.

2.  The applicant states he was arrested on 1 January 1988 and he was charged with adultery and making a false official statement.  As a result, his case was sent to a general court-martial.  He was released from active duty on 1 March 1988 with an under other than honorable conditions discharge.  However, prior to that, on 9 February 1988, he received a general court-martial that sentenced him to a reduction to private first class (PFC)/E-3 and 2 months of restriction.  He believes his discharge is inappropriate because he had already been sentenced by a general court-martial.  He adds that he was laid off in 2009 after several years of employment and has been trying to find a job but is being turned away because his record is coded as having been arrested for a violent crime.  He would like it known that it was consensual sex with a female over the age of 18 at the time.  Additionally, the military police file coding prohibits him from purchasing a firearm which has also affected his employability.

3.  The applicant provides the following documents:

* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 March 1988
* A copy of a DD Form 491 (Summarized Record of Trial), dated 9 February 1988.

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 name is listed as a subject in Report of Investigation 0001-__-CID__-_____ -____.  Paragraph 2-5, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available.  Requests for access to, or amendment of, CID investigative reports should be submitted, along with new and relevant information (if available) to the Director, U.S. Army Crime Records Center, ATTN: Freedom of Information/Privacy Act Division, 6010 6th Street, Fort Belvoir, VA 22060-5585.  

3.  There is no indication that he has applied to the Director, U.S. Army Crime Records for the correction he seeks.  Therefore, this issue pertaining to the correction of the titling block of the CID report to show he was convicted for "violating an act" instead of "adultery" and that this information be relayed to the NCIC so his charge can be corrected in the NCIC record will not be discussed further in the Record of Proceedings.

4.  The applicant’s records show he enlisted in the Regular Army on 30 May 1978 and held military occupational specialty 11B (Infantryman).  He also executed a 4-year reenlistment on 23 February 1981 and a 6-year reenlistment on 1 February 1985 and he attained the rank/grade of staff sergeant (SSG)/E-6.


5.  His records further show he served in Germany from 24 January 1980 to 7 July 1983 and 19 March 1985 to 29 February 1988.  He was assigned to the U.S. Army Military Community Activity, Baumholder. 

6.  His awards and decorations include the Army Achievement Medal, Army Service Ribbon, Good Conduct Medal (2nd Award), Army of Occupation Medal, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon, Army Lapel Button, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

7.  On 22 September 1987, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice failing to be at the time prescribed to his appointed place of duty.  His punishment consisted of an oral reprimand and extra duty.

8.  On 1 January 1988, he was arrested by the military police subsequent to allegations of rape.  The CID preliminary investigation disclosed that while a person named Ms W was babysitting his three children, the applicant, a married man, approached her, massaged her back, fondled her breasts, and forced her into having sexual intercourse against her will.  According to the CID report, he initially denied having any sexual intercourse with her but later rendered a written statement admitting to having sexual intercourse with her.  

9.  On 12 January 1988, court-martial charges were preferred against him for one specification of adultery, one specification of wrongfully committing an indecent act, and one specification of making a false official statement.

10.  On 14 January 1988, by memorandum, he was notified that an investigation pursuant to Article 32 of the UCMJ would be conducted to investigate the facts and circumstances surrounding the preferred charges.

11.  On 15 January 1988, he consulted with counsel and voluntarily waived his right to an investigation of the charges against him.  He further voluntarily and freely offered to plead guilty to the charge and its three specifications and to enter into a written stipulation of fact concerning it to be used by the military judge or court members in determining an appropriate sentence provided the convening authority approves no sentence in excess of a dishonorable discharge, confinement for 30 months, and a reduction to E-1. 

12.  On 15 January 1988, the convening authority accepted his plea. 


13.  On 3 February 1988, he consulted with legal counsel who advised him 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

14.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever.  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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."  He also elected to submit a statement on his own behalf.

15.  On 7 February 1988, by memorandum, he was notified that a Department of the Army imposed a bar to reenlistment against him subsequent to a review of his records.  

16.  A copy of the separation authority's approval is not available for review with this case; however, it appears that on or about 18 February 1988, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under honorable conditions character of service. 

17.  He submitted three selected pages of a 19-page DD Form 491 (Summarized Record of Trial) that shows he was tried by a general court-martial that convened by the commanding officer, Headquarters, 8th Infantry Division, on 9 February 1988.  The pages that show the specific charges are not available for review; however, the available pages show he was sentenced to a reduction to private first class/E-3 and two months of restriction.  There is no indication if and when the convening authority approved his sentence.



18.  On 1 March 1988, he was accordingly discharged.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 1 year, 3 months, and 18 days of creditable active service and had 84 days of lost time.

19.  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.

20.  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.  It 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.

21.  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 his discharge should be upgraded.   

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a charge sheet, a voluntary request for discharge under the provisions of chapter 10 of Army Regulation
635-200, and a properly-constituted DD Form 214 that shows he was discharged on 1 March 1988 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.


3.  The applicant's records show 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.

4.  Absent evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were presumably fully protected throughout the separation process.  It also appears his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

5.  Although he submitted three selected pages of a 19-page summarized record of trial, his official record is void of such record of trial and the documents he submitted neither show the specific charges nor do they indicate if and when the convening authority approved his sentence.  Nevertheless, the fact remains that he voluntarily requested discharge from the Army.

6.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  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 or an honorable 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)                                         AR20100000833



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)