BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029886 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that while at home on leave with his wife, he was arrested for sexual assault and having sex with a person under the age of 13.  He goes on to state that at the time he was 22 years of age and the incident for which he was charged occurred in 1986 when he was 14 years of age.  He goes on to state that he was convicted in 1994 and served half of a 15-year sentence.  He has been out of prison just under 10 years and he is due to come off probation.  He continues by stating that it has been difficult for him with a felony conviction, losing his marriage, and the life that he knew and loved.  He also states that he has complied with his probation; however, due to the economy, he has been unable to make his child support payments for his 13 year old daughter and his driver’s license was suspended.  He has been detained in the regional jail and he is unable to come up with the funds to get out.  An upgrade of his discharge would be helpful in getting him back on his feet. 

3.  The applicant provides a four-page handwritten statement explaining 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 22 February 1971 and enlisted in the Regular Army in Richmond, Virginia, on 17 July 1990, for a period of 3 years and training as a mobile subscriber equipment network switching systems operator.  

3.  He completed basic training at Fort Jackson, South Carolina and advanced individual training at Fort Gordon, Georgia and he was transferred to Fort Carson, Colorado for his first duty assignment.

4.  On 20 April 1992, he was transferred to Korea and advanced to pay grade 
E-4 on 17 September 1992.  He reenlisted on 17 December 1992 for a period of 2 years and departed Korea on 9 November 1993 for assignment to Fort Stewart, Georgia on 13 December 1993.

5.  The applicant was on leave in Spotsylvania, Virginia when he was arrested by civil authorities on charges of rape and oral/anal sodomy of a child under the age of 13 during the period 1986 to 1990.  He was released on bond pending trial and on 25 March 1994 he was convicted on all charges.  His bond was revoked and he was taken into custody pending sentencing.  On 2 May 1994, he was sentenced to three concurrent 30-year sentences (15 years of each sentence suspended).

6.  On 21 June 1994, the applicant was notified by certified mail of his commander’s intent to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to his conviction by civil authorities.  The notification was delivered; however, the applicant failed to return any of the paperwork requesting legal counsel or an administrative hearing before a board of officers. 

7.  On 12 August 1994, the appropriate authority approved the recommendation for discharge and directed that he be issued an under other than honorable conditions discharge.


8.  Accordingly, on 23 August 1994, he was discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct with an under other than honorable conditions discharge.  He had served 3 years, 9 months, and 15 days of active service and he had 110 days of lost time due to being in civil confinement.

9.  On 25 April 1997, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable because it was based on a civil conviction and not on his military service.  He also indicated that due to incarceration he was unable to adequately represent himself during the discharge proceedings. 

10.  On 1 October 1997, after reviewing all of the available evidence in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.

11.  Army Regulation 635-200 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, conviction by civil authorities and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

   a.  Paragraph 3-7a of Army Regulation 635-200 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 of Army Regulation 635-200 also 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.

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, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offenses.  In addition, the incident for which he was charged may have started in 1986 when he was 14, but it appears the "incident" continued for 4 years, until just before he enlisted.  Accordingly, the applicant’s overall record of service simply does not rise to the level of a general or honorable 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)                                         AR20100029886



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ABCMR Record of Proceedings (cont)                                         AR20100029886



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