IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004798 


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

2.  The applicant states that the incident for which he was discharged occurred off post; therefore, the military should not have punished him.  He goes on to state that at the time he was young, foolish, and immature and he now wants to straighten out his life.  He further states that he has matured and he has a better outlook on life and has become a changed person for the better.  He is a law abiding citizen.

3.  The applicant provides three third-party statements of support and a letter from the Texas Department of Criminal Justice.

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 13 March 1959 and he enlisted in the Regular Army in Jackson, MS on 6 May 1980 for a period of 3 years, training as an infantryman, and assignment to the 2d Armored Division.  He completed his one-station unit training (OSUT) at Fort Benning, GA and he was transferred to Fort Hood, TX for his first and only duty assignment.

3.  On 21 October 1981, nonjudicial punishment (NJP) was imposed against him under Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language towards a superior noncommissioned officer.

4.  On 14 March 1982 he was arrested by civil authorities in Killeen, TX and he was charged with aggravated rape.  On 8 July 1982, he was found guilty of the charge and on 9 July 1982, he was sentenced to 20 years confinement at the Texas Department of Corrections.

5.  On 26 July 1982, the applicant’s commander initiated action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to his conviction by civil authorities.

6.  The applicant requested consideration of his case by a board of officers and representation by counsel.  He elected not to submit a statement in his own behalf.  Defense counsel was appointed and counsel obtained a delay in the board proceedings in order to consult with the applicant.

7.  A board of officers convened at Fort Hood on 5 August 1983 with the applicant being represented by his defense counsel.  After carefully considering the available evidence, the board found that the applicant was unfit for further retention in the service and recommended his discharge under other than honorable conditions due to his conviction by civil authorities.

8.  On 19 October 1983, the appropriate authority (a major general) approved the findings and recommendation of the board of officers and directed that the applicant be discharged under other than honorable conditions.

9.  Accordingly, on 3 November 1983, he was discharged under the provisions of Army Regulation 635-200, chapter 14, due to his conviction by civil authorities with an under other than honorable conditions discharge.  He completed 1 year, 10 months, and 9 days of creditable active service with 1 year, 7 months, and
20 days of time lost due to civil confinement.
10.  On 4 August 1987, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that it was unjust for him to be discharged based on a civil conviction when he was in fact a good Soldier and the fact that he was a good Soldier was not taken into consideration.  He also contended that he was not provided adequate legal representation in his case.

11.  After considering all of the available evidence in his case, on 1 April 1988, the ADRB determined that his discharge was both proper and equitable under the circumstances and unanimously voted to deny his request.

12.  Documents provided by the applicant with his application show he was released on supervised parole on 9 September 2009.

13.  Army Regulation 635-200 (Personnel Separations) 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.

14.  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.  

15.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.
3.  The applicant’s contentions and supporting documents have been considered; however, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offense and his otherwise undistinguished record of service.  The applicant's record of service simply does not rise to the level of an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110004798



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004798



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1