BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020853 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* When he was discharged he was told his discharge would be automatically upgraded to honorable within six months
* He was forced out of the service while still in treatment for alleged molestation/suicide prevention
* The allegations against him were never proven nor did they occur
* He and his ex-wife were having marital problems and she fabricated the story of molestation against him
* Even with the molestation allegations against him he was granted full custody of his son
* His ex-wife appealed the decision twice 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Divorce decree that shows he was awarded full custody of his son in 1991





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 3 January 1980.  He trained as a tactical transportation helicopter technician inspector, tactical transportation helicopter repairman, and utility helicopter repairer.  He remained on active duty through continuous reenlistments and attained the rank of staff sergeant on 
19 February 1986.

3.  On 3 October 1988, the applicant made a sworn statement admitting to sexually abusing his 8-year old stepdaughter.

4.  On 22 December 1988, a bar to reenlistment was imposed against the applicant.

5.  The charge sheet is not available.  On an unknown date, charges were preferred against the applicant for committing indecent acts upon a child.

6.  On 30 January 1989, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* he never dreamed his military career could be terminated when he turned himself for medical help and assistance in October 1988
* since that time he has fully cooperated and undergone extensive rehabilitation
* his family supports him and their life is normal
* he requested he be allowed to continue on active duty
* his past record has been exemplary
* he has combat duty in Grenada
* he has never been in any type of trouble
* the Army has an extensive program of rehabilitation which he is successfully completing
* Army medical personnel support his position
* There are many other units at Fort Bragg he could be reassigned to and continue to serve his country
* If he is discharged his characterization should be honorable 

7.  On 3 February 1989, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

8.  He was discharged under other than honorable conditions on 10 February 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 2 years, 
2 months, and 8 days of creditable active service.

9.  On 27 August 1999, the Army Discharge Review Board denied his request for an honorable discharge.

10.  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.



11.  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.

12.  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.

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  He contends the molestation allegations against him were never proven nor did they occur.  However, he made a sworn statement on 3 October 1988 admitting to sexually molesting his 8-year old stepdaughter. 

3.  His contention he and his ex-wife were having marital problems and she fabricated the story of molestation against him relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, he voluntarily requested discharge in lieu of trial by court-martial.  

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  
  
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.


6.  His record of service during his last enlistment included a bar to reenlistment and serious offenses (indecent acts upon a child) for which a court-martial charge was preferred.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge 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)                                         AR20100020853





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ABCMR Record of Proceedings (cont)                                         AR20100020853



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