IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011089 


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 and that the narrative reason for his discharge be changed.

2.  The applicant states that he was a great Soldier who never had any disciplinary problems while he was on active duty.  He states he was involved in a relationship with a senior noncommissioned officer who was married.  He concludes by saying he has problems seeking employment because his narrative reason for separation makes it look like he committed a felony offense.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 October 1993 in support of his application.

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 enlisted in the Regular Army on 10 August 1988.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 95B (Military Police).  The highest rank/grade he attained during this enlistment period was specialist four/E-4.

3.  There is no evidence in the applicant's official military personnel file (OMPF) that he was convicted by a court-martial or punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

4.  On 7 July 1993, the applicant's commander notified him that action was initiated to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, due to commission of a serious offense.  The reasons for this separation action were his making false official statements, adultery, and dereliction of duty, all of which are violations of the UCMJ.

5.  The commander advised the applicant of his right to be represented by counsel, to request a hearing before an administrative separation board, to submit written statements in his own behalf, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant that the proposed separation action could result in an under other than honorable conditions discharge or a general discharge.

6.  After the applicant consulted with counsel, he waived consideration of his case by an administrative separation board and a personal appearance before said board.  He did not submit personal statements in his own behalf.  The applicant indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions.  He further indicated he understood that his separation under other than honorable conditions could deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 8 July 1993, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense for making a false official statement, adultery, and dereliction of duties.  The commander recommended a general discharge.  In addition, the commander stated the applicant had received an Article 15 under the provisions of the UCMJ for the aforementioned offenses on 16 June 1993.  He also stated that the applicant had been counseled as follows:

* on 11 February 1992 for failing a record Army Physical Fitness Test
* on 5 January 1993 for writing bad checks
* on 1 June 1993 for unsatisfactory performance as a team leader
* on 2 March 1993 for minor disciplinary misconduct

8.  The approval authority approved the applicant's discharge from the service with the issuance of a General Discharge Certificate.

9.  On 6 October 1993, the applicant was discharged.  He was issued a DD Form 214 confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct for commission of a serious offense with a general discharge.  He completed 5 years, 1 month, and 27 days of creditable active service with no time lost.

10.  There is no evidence to show the applicant applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade.

11.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  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 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.
	c.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for all three offenses (dereliction of duty, false official statements, adultery).  The maximum punishments are as follows:

* dereliction of duty (Article 92), 6 months of confinement
* making false official statements (Article 107), forfeiture of all pay and allowances and confinement for 5 years
* adultery (Article 134), forfeiture of all pay and allowances and confinement for 1 year

	d.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes that SPD codes are used to provide a statistical accounting of the reasons for which active Army personnel are separated from active duty.  SPD codes are not intended to stigmatize an individual in any manner.  The reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  In pertinent part, the SPD code of JKQ means separation for misconduct for commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's company commander initiated separation action against him for falsifying official documents, committing adultery, and dereliction of duty.  These three offenses are violations of the UCMJ with the maximum punishment under the Manual for Courts-Martial of confinement for 5 years, a dishonorable or bad conduct discharge, and forfeiture of all pay and allowances.

2.  The applicant contends that he was a "great Soldier" and that his narrative reason for his discharge makes it look like he committed a felony offense.  In fact, the applicant did commit two offenses.  The offenses of falsifying official documents and adultery, which he openly admitted to in his application, have maximum punishments of 1 year or more of confinement.

3.  Although a discharge under other than honorable conditions was normally issued to Soldiers discharged by reason of misconduct for commission of a serious offense, the applicant was discharged with a general discharge.  Therefore, it appears the applicant's service record was taken into consideration.  Considering the known facts of this case, the separation authority was lenient.


4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100011089



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ABCMR Record of Proceedings (cont)                                         AR20100011089



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