IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003627 


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

2.  The applicant states:

* he was a good Soldier with 8 years of service and 2 honorable discharges
* his sentence was unfair
* he served his time in jail and his life has changed over the last 22 years
* he is running a cleaning business and has been married with a family for the past 12 years
* he is saved and serving God

3.  The applicant provides a self-authored statement and a character letter.

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 21 January 1976.  His record shows he was awarded military occupational specialties 31C (Single Channel Radio Operator) and 31K (Combat Signaler).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  On 17 December 1986, the applicant was found guilty by a German court of raping and causing bodily injury to a German National.  He was sentenced to 3 years confinement in a German prison.

4.  On 22 April 1988, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for being found guilty of rape in a German court and sentenced to 3 years of confinement.

5.  On 22 June 1988, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.

6.  In accordance with Army Regulation 635-200, separation of Soldiers convicted by a foreign tribunal may be approved in advance of their release from confinement.  Under no circumstances will a Soldier confined in a foreign prison be separated until the term of imprisonment is completed and the Soldier is returned to the United States, unless the discharge is authorized by Headquarters, Department of the Army.

7.  On 12 January 1989, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, reduced him to the rank of private (PV1)/E-1, and directed his discharge within 5 days after his release from confinement.

8.  On 2 June 1989, the applicant was discharged for misconduct - commission of a serious offense.  He completed 11 years, 4 months, and 12 days of creditable active service.  

9.  The applicant provided a self-authored statement explaining his circumstances and a character letter.

10.  On 8 June 1993, the Army Discharge Review Board denied the applicant's 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 prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

12.  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.

13.  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's contention that his discharge should be upgraded was carefully considered; however, there is an insufficient evidentiary basis to support his request.

2.  Records show the applicant was convicted by German civil authorities and sentenced to 3 years confinement by a foreign tribunal for raping and causing bodily harm to a German National.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout his trial and the separation process.  Based on the applicant's indiscipline which includes a civil conviction and discreditable conduct upon the Armed Forces, his misconduct renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20110003627



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ABCMR Record of Proceedings (cont)                                         AR20110003627



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