IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025355 


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 in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  He states, in effect, he did not want to talk about what happened back then because it would have hurt many others so he resigned in lieu of court-martial expecting an honorable discharge.  In summary, he was on the fast track when he was selected to attend the Signal Officers Advanced Course early and then he was issued orders for Korea.  He submitted a request for a congressional inquiry to get out of going to Korea and to save his marriage because his wife was pregnant with their second son and she had sworn she would leave him if she had the second baby without him being there.  In response to his congressional inquiry he was advised his Korea assignment did not count as a tour and he would be able to take as much leave as he wanted to see the birth of his second son and save his marriage.

3.  He also states when he arrived back at Fort Gordon, GA, he was charged with adultery and fraternization with a specialist (SPC)/E-4 under his control.  She was a sexual predator and he was a fool.  He resigned without saying anything because he wanted to save his marriage more than exposing the truth.  This was a black and white motivated issued.  He further states he saved his marriage, has four sons, and retired after being a principal for 30 years.  He is requesting clemency in the form of an upgraded discharge.  



4.  He provides no additional 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 military records show he was appointed in the U.S. Army Reserve (USAR), Signal Corps, as a second lieutenant effective 5 May 1975.  He entered active duty on 30 July 1975 and he was promoted to first lieutenant on 30 July 1977.

3.  He served in Germany from 19 April through 12 October 1980 and in Korea from 27 July 1979 through 23 July 1980.

4.  A DD Form 458 (Charge Sheet), dated 6 March 1981, was issued by the Commander, Headquarters and Headquarters Company, 67th Signal Battalion, 2nd Signal Training Brigade, Fort Gordon.  He was charged with one specification each of wrongfully and unlawfully having social and sexual relations with a fellow Soldier in the rank/pay grade SPC/E-4, and wrongfully and unlawfully having sexual intercourse with the SPC between 15 November 1980 and 20 January 1981.  

5.  On 6 March 1981, he voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 635-105 (Personnel Separations – Officer Resignations and Discharges), chapter 5.  He stated that he did not desire to appear before a board of officers, he had not been subjected to coercion with respect to his resignation, and he had been advised of and fully understood the implications of his actions.

6.  On 16 March 1981, the applicant's unit commander recommended approval of the applicant's request and the issuance of an under other than honorable conditions discharge.  The unit commander stated the applicant's conduct in 
fraternizing with enlisted personnel demonstrated a complete lack of integrity and judgment on his part, complete lack of disregard of the special trust invested in him as an officer, and rendered him unfit for duty as an officer of the U.S. Army. 

7.  On 16 March 1981, the applicant's battalion and brigade commanders recommended approval of the applicant's request and the issuance of an under other than honorable conditions discharge. 

8.  On 27 April 1981, the Deputy Assistant Secretary (Department of the Army Review Board and Personnel Security) accepted the applicant’s tendered request for resignation for the good of the service and directed the issuance of an under other than honorable conditions discharge.

9.  On 13 May 1981, he was discharged under the provisions of chapter 5, Army Regulation 635-120, in lieu of a board action for conduct triable by court-martial, in the rank of first lieutenant.  His service was characterized as under other than honorable conditions.

10.  On 9 July 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  On 16 February 1983, the ABCMR denied his request for a withdrawal of his resignation for the good of the service.

12.  Army Regulation 635-120, in effect at the time, prescribed the procedures whereby an officer on active duty could tender his/her resignation or be discharged.  Chapter 5 of the regulation specified an officer could submit a resignation for the good of the service prior to general court-martial charges being preferred against him/her and prior to being recommended for elimination.  A resignation for the good of the service, when approved by Headquarters, Department of the Army (HQDA), was normally accepted as being under other than honorable conditions, in which case the officer would be furnished an Under Other Than Honorable Conditions Discharge Certificate.  If the resignation was accepted by HQDA under honorable conditions, the officer would be furnished a General Discharge Certificate.

13.  Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time, provided the authority for the separation of officers from active duty.  Paragraph 1-5 specified the character of discharge would be predicated on the officer’s behavior and performance of duty while a member of a military service.  Characterization normally would be based on a pattern of behavior and duty performance rather than an isolated incident.  There were circumstances,
however, in which conduct reflected by a single incident could provide the basis for characterization.  An officer would normally be furnished an honorable discharge unless conditions existed or as directed by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows that on 6 March 1981 he was charged with one specification each of wrongfully and unlawfully having social and sexual relations with a SPC/E-4 and wrongfully and unlawfully having sexual intercourse with the SPC/E-4.  On 6 March 1981, he voluntarily, willingly, and in writing submitted his resignation for the good of the service.  His resignation was approved and HQDA directed the issuance of an under other than honorable conditions discharge.  In accordance with pertinent regulations HQDA was the approval authority for the issuance of an under other than honorable conditions discharge.

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

4.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case. In view of the foregoing, there is no basis for granting the 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)                                         AR20100025355



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ABCMR Record of Proceedings (cont)                                         AR20100025355



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