IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110000926 


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 to an honorable discharge.

2.  The applicant states he recently found out his discharge had not been upgraded as promised.  He states he was told to sign a release and that within 6 months his discharge would be automatically upgraded to honorable.  He states he would have stayed and fought all the charges against him instead of accepting a discharge if he had known this wasn't true.  He states at the time he accepted the discharge because of family responsibilities, including the death of his grandfather and his twin sister's medical emergency.

3.  The applicant did not provide any evidence in support of 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 enlisted in the Regular Army on 18 August 1989.  He completed his initial entry training and he was awarded military occupation specialty 12F (Engineer Track Vehicle Crewman).

3.  The applicant's service record is void of documents showing he received nonjudicial punishment and there are no records of a court-martial conviction.

4.  On 27 August 1991, court-martial charges were preferred against the applicant for two separate specifications of rape and indecent assault.  

5.  On 30 September 1991, a second court-martial charge was preferred against him for one specification of adultery. 

6.  On 5 February 1992, the applicant voluntary requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial for the charge of adultery only.  He stated he was making this request of his own free will and that he had been afforded the opportunity to speak with counsel prior to making this request.  In his request, he acknowledged he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.  He further understood that there was no automatic upgrading or review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or this Board if he wished a review of his discharge.

7.  The company commander's endorsement to the applicant's request for voluntary discharge in lieu of court-martial states:

Trial by court-martial would not be in the best interest of the government.  The charge of rape and charge of indecent assault were not considered…information received about the victim…before trial caused previous information to be questioned.

8.  On 6 February 1992, the Staff Judge Advocate recommended approval of the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of court-martial. 

9.  General Court-Martial Order Number 9, issued by Headquarters, Fort Hood, TX, states that court-martial proceedings against the applicant were terminated on 7 February 1992 subsequent to the approval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.

10.  On 7 February 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He dismissed the two charges and their specifications.  He directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the rank/grade of private (PV1)/E-1.

11.  On 12 February 1992, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 2 years, 5 months, and 25 days of creditable active service with no time lost.

12.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The maximum punishment for adultery is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 months, reduction to grade E-1, and a total forfeiture of all pay and allowances.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

   c.  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.

	d.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged under the Manual for Court-Martial for rape, indecent acts, and adultery.  The specification of rape and indecent acts were questionable and subsequently dropped.  The charge of adultery remained.  This offense carried a maximum punishment of a punitive discharge, confinement for up to 12 months, and forfeiture of all pay and allowances.  He subsequently requested an administrative discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, to avoid the possibility of confinement at a Federal penitentiary or the U.S. Disciplinary Barracks, a felony conviction, and a dishonorable discharge.

2.  The type of discharge directed and the reasons for the discharge were appropriate considering all the known facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.  Furthermore, the charge to which he admitted guilt did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

3.  In the applicant's request for discharge, he explicitly stated he understood his discharge would not be automatically upgraded.  He stated he understood he must apply to the ADRB or this Board for consideration of a discharge upgrade.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20110000926



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ABCMR Record of Proceedings (cont)                                         AR20110000926



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