BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003691 


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 an honorable discharge. 

2.  The applicant states that he was convicted of a crime he did not commit.  After many years in prison, and after his release, he was finally proven innocent and exonerated through DNA [deoxyribonucleic acid] testing in 2003. 

3.  The applicant provides an Order of Expungement of Arrest and Conviction from the District Court of Riley County, Kansas. 

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 June 1959, he enlisted in the Regular Army in Los Angeles, California, on 17 April 1979, for a period of 3 years, training as an armor crewman, and assignment to the 1st Infantry Division, Fort Riley, Kansas.

3.  He completed one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to Fort Riley for assignment to an armor company.  He was advanced to the pay grade of E-4 on 1 August 1980. 

4.  On 28 July 1981, he was arrested by civil authorities at Riley County, Kansas for rape, aggravated burglary, and aggravated battery.  On 7 January 1982, he was convicted contrary to his pleas on all counts.  On 5 April 1982, he was sentenced to serve:

* Not less than 5 years nor more than 20 years for aggravated battery
* Not less than 5 years nor more than 20 years for aggravated burglary –
* Not less than13 years nor more than life for rape
*   All sentences were to run concurrently with one another

5.  On 8 June 1982, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to conviction by civil authorities.

6.  The applicant waived all of his rights and indicated that he did not intend to appeal his conviction.  However, he submitted a statement in his own behalf whereas he continued to assert his innocence and requested that the commander take into consideration that he had a clean military record.  He requested that the commander give him the benefit of the doubt in the matter and grant him an honorable discharge.

7.  The appropriate authority approved the recommendation for discharge on 13 July 1982 and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on 21 July 1982 under the provisions of Army Regulation 635-200, chapter 14, for misconduct – conviction by civil court.  He had served 2 years, 3 months, and 6 days of active service and he had 359 days of lost time due to being in civil confinement.

9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  The District Court of Riley County, Kansas issued an Order of Expungement of Arrest and Conviction, dated 3 April 2003, wherein the applicant’s convictions were vacated and the case against the applicant was dismissed with prejudice as the applicant was found to be actually innocent of the offenses with which he was charged.  The court ordered that his arrest and conviction be expunged from all records.

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, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

12.  Army Regulation 635-200, Chapter 5, provides, in pertinent part, that the Secretary of the Army may approve the discharge of Soldiers for the convenience of the government.  An Honorable, General, or uncharacterized discharge may be directed under this separation authority.  A separation code of “JFF” denoted separation under “Secretarial Authority.” 

 DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded to a fully honorable discharge has been noted and found to have merit. 

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights, the characterization of service, and the narrative reason for separation were appropriate for the circumstances of his case at the time. 

3.  It is also noted that the applicant continued to assert his innocence from the beginning.  In 2003 it was determined by the court that he was in fact innocent of the crimes for which he was convicted.  The court ordered all records to be expunged of information related to the applicant's arrest and conviction.

4.  Accordingly, in the interest of justice, the applicant’s discharge under other than honorable conditions should be upgraded to a fully honorable discharge under Secretarial Authority.  Additionally, the applicant should be credited with active service for the lost time he was charged with involving civil confinement and he should be issued an Honorable Discharge Certificate. 
BOARD VOTE:

___x__  __x______  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  Voiding his discharge under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to conviction by civil authorities, dated 21 July 1982.

   b.  Issuing him a new DD Form 214 showing that he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, due to Secretarial Authority, in the rank of specialist four, E-4; assigning him a separation code of “JFF” and a Reentry code of “1”; crediting him with serving 3 years, 3 months, and 5 days of active service and having no lost time; and paying to him any pay and allowances due as a result of these corrections.

   c.  Issuing him an Honorable Discharge Certificate, dated 21 July 1982.




      _______ _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)                                         AR20110003691



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ABCMR Record of Proceedings (cont)                                         AR20110003691



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