BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015662 


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 general discharge be upgraded to fully honorable.

2.  The applicant states that until recently he was unaware that he needed to apply for an upgrade of his discharge within 15 years.  He further states that he accepts responsibility for his actions and now understands the long term implications of his actions.  He continues by stating that his present circumstances in part stem from the mistake he committed while in the service.  He is currently homeless, disabled, severely depressed, and he believes an upgrade of his discharge would be beneficial in overcoming his circumstances.

3.  The applicant provides no additional documents with 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 was born on 5 August 1961 and he was married when he enlisted in the Regular Army on 13 January 1987 for a period of 4 years, training as a multiple launch rocket system crewman and a $5,000 cash enlistment bonus.  He completed his one-station unit training at Fort Sill, Oklahoma and remained assigned at Fort Sill.  On 24 February 1989, he was transferred to Fort Rucker, Alabama for attendance of the Warrant Officer Candidate School for training as an aviation warrant officer.

3.  In September 1989, nonjudicial punishment was imposed against him for having sexual intercourse with the wife of another Soldier.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

4.  On 3 October 1989, his commander submitted a recommendation to eliminate the applicant from flight training due to misconduct (adultery).  He indicated the applicant, by his own admission had an adulterous liaison with the wife of another Soldier while at the same time he requested and received time off on two occasions to resolve problems with is own wife.  The applicant elected not to submit a statement in his own behalf and the recommendation was approved on 10 October 1989.

5.  Meanwhile the applicant submitted a request to resign and be discharged from the service.

6.  On 3 November 1989, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct (adultery/commission of a serious offense).  He also advised the applicant that he was recommending that he receive a general discharge.

7.  After consulting with counsel the applicant elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 14 November 1989 and directed that he be furnished a General Discharge Certificate.




9.  On 17 November 1989, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense.  He had served 2 years, 10 months, and 5 days of total active service.

10.  There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

11.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

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

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant’s contentions have been noted; however, the fact that he wants to obtain benefits or improve his station in life is not sufficiently mitigating to warrant an upgrade of his discharge.  The applicant admitted to the misconduct that served as the basis for his discharge, therefore, there is no doubt to be resolved. 



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)                                         AR20100015662



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ABCMR Record of Proceedings (cont)                                         AR20100015662



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