IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011693 


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 his misconduct was not associated with military service.

3.  The applicant provides a copy of his DD Form 257A (General Discharge Certificate).

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.  On 22 October 1991, the applicant enlisted in the Regular Army for a period of 6 years, having served 4 months and 5 days of prior active service and 10 years, 11 months, and 20 days of prior inactive service.
3.  On 3 April 1994, the applicant was convicted by a civil court in Okaloosa County, FL for sexual activity with a child in familial authority, and lewd and lascivious acts upon a child under 16 years of age.  He was sentenced to
15 years supervised probation, each count concurrent.

4.  On 1 June 1994, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-5, for conviction by a civil court.  The company commander stated that the reason for his recommendation for elimination was the applicant's conviction by a civil court.

5.  On 1 June 1994, the applicant acknowledged that he was in receipt of the notification of separation action against him.  The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less than general under honorable conditions.  He also waived his rights to representation by defense counsel.  The applicant elected not to submit statements in his own behalf.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.

6.  The appropriate authority approved the applicant’s separation under the provision Army Regulation 635-200, chapter 14 paragraph 14-5, conviction by a civil court, and directed the issuance of a general discharge.

7.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 July 1994 under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  At the time he had completed
7 months and 24 days of net active service this period.

8.  On 13 January 1997, the Army Discharge Review Board (ADRB) determined the reason for discharge and the characterization of the applicant's service were both proper and equitable.  Therefore, the board unanimously voted to deny the applicant’s request for an upgrade of his discharge.

9.  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.

10.  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.

11.  Army Regulation 600-20 (Army Command Policy) prescribes policy on basic responsibilities of command, military discipline and conduct.  It states, in pertinent part, that the standards of conduct for members of the Armed Forces regulate a member's life 24 hours each day beginning at the moment the member enters the military status and not ending until the person is discharged or otherwise separated from the Armed Forces.  It further states those standards of conduct, including the Uniform Code of Military Justice (UCMJ), apply to a member of the Armed Forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of indiscipline includes a civil conviction for sexual activity with a child in familial authority, and lewd and lascivious acts upon a child under 
16 years of age.  Based on this record of indiscipline, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  Although his misconduct occurred outside of a military installation and while he was off duty it does not mitigate the fact that he was a Soldier 24 hours each day during his term of enlistment.  Therefore, his contention that he had no misconduct associated with military service is without merit.
5.  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)                                         AR20100011693



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ABCMR Record of Proceedings (cont)                                         AR20100011693



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