BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019789 


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 other than honorable conditions discharge.

2.  The applicant states he has had no misconduct or write-ups since his incarceration.  He has maintained a clean record for over 17 years. 

3.  The applicant did not provide any documentary evidence.

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 records show he enlisted on 29 August 1984 and held military occupational specialties 13R (Field Artillery Fire-Finder/Radar Operator) and 31C (Single Channel Radio Operator).  He served through multiple reenlistments within and outside the continental United States and attained the rank/grade of staff sergeant/E-6. 

3.  His records also show he was awarded the Army Achievement Medal (1st Oak Leaf Cluster), Army Good Conduct Medal (3rd Award), National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Driver and Mechanic Badge with Driver - W and Driver - T Bars. 

4.  On 7 May 1993, he was convicted by the District Court of Comanche County, OK, for the criminal charges of rape and lewd molestation of his 11-year old  stepdaughter.  The court sentenced him to life in prison and an additional 5 years to run concurrently.  

5.  On 15 June 1993, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations) by reason of a civil conviction.  He recommended an under other than honorable conditions discharge.

6.  On 20 July 1993, the applicant acknowledged receipt of the notification of the proposed action to discharge him by reason of conviction by civil authorities.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  

7.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He requested consideration of his case by an administrative separation board, a personal appearance before an administrative separation board before, and elected to submit a statement on his own behalf.  In his statement, he chronicled his military service. 

8.  Subsequent to this acknowledgement, the applicant's immediate commander recommended his discharge under the provisions of Army Regulation 635-206 by reason of misconduct - conviction by civil court, with the issuance of an under other than honorable discharge.  

9.  On 8 September 1993, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable discharge.  

10.  On 22 October 1993, the court-martial convening authority ordered an administrative separation board convene to determine if the applicant should be discharged.

11.  On 3 December 1993, a military attorney reviewed the separation packet and returned it without action until the Soldier indicated in writing that his conviction would not be appealed, or his adjusted term of service had expired, or the time for his civilian appeal had expired. 

12.  On 9 December 1993, an official at the Fort Sill, OK, Military Personnel Division reviewed the separation packet and returned it without action until the Soldier indicated in writing that his conviction would not be appealed or his adjusted term of service had expired, or the time for his civilian appeal had expired.  However, as an exception, if a civilian conviction is being appealed and the appeal may be lengthy, the commander may request the Soldier be discharged prior to final action on the appeal.  The commander's recommendation must be substantiated and must be forwarded to Headquarters, Department of the Army (HQDA) for a final decision. 

13.  On 11 January 1994, by memorandum, the applicant's immediate commander stated that the applicant had filed a motion to appeal his civilian conviction in July 1993 and that his motion was pending.  According to an official at the Comanche County Public Defender's Office, the civilian conviction may take 1 to 2 years to appeal.  

14.  On 12 January 1993, the applicant's intermediate commander again recommended approval of the applicant's discharge with a characterization of service as other than honorable.

15.  On 23 February 1994, by memorandum to HQDA, the court-martial convening authority requested approval of a waiver of the applicant's administrative separation board and recommended the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions character of service.

16.  On 23 March 1994, HQDA approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable character of service.  Accordingly, the applicant was discharged on 3 May 1994.
17.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 by reason of misconduct - conviction by civil court with an under other than honorable conditions character of service.  This form further confirms he completed a total of 9 years, 8 months, and 5 days of total active service.  His lost time due to confinement is not listed or is not viewable on this form.

18.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct for commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority might direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority might approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.  When the sole basis for separation was a serious offense resulting in a conviction by court-martial that did not impose a punitive discharge, the Soldier's service might not be characterized as under other than honorable conditions unless approved by HQDA.

	a.  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. 

	b.  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 under other than honorable conditions discharge should be upgraded.

2.  The evidence of record shows he was convicted by a civil court of rape of his 11-year old stepdaughter and lewd molestation, both of which are serious offenses, and he was sentenced to life with an additional 5 years in civil confinement.  Accordingly, his chain of command initiated separation action against him as required by the regulation at the time.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Based on his overall record and his civil conviction, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20100019789



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ABCMR Record of Proceedings (cont)                                         AR20100019789



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