IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005734 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant makes no additional statement.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three character reference letters

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 13 June 1978.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Field Artillery cannon Crewmember).  He served through two reenlistments and attained the rank/grade of sergeant first class/E-7.

3.  He served in Germany from January 1984 to September 1987.  He was awarded the Army Service Ribbon, Parachutist Badge, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Good Conduct Medal (4th Award), Army Commendation Medal, Overseas Service Ribbon, National Defense Service Medal, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  On 15 July 1991, he was investigated by the U.S. Army Criminal Investigation Command for allegedly having an ongoing relationship with a 14-year old female. 
The investigation concluded that he committed the offense of adultery and carnal knowledge with a minor child.

5.  On 31 July 1991, court-martial charges were preferred against the applicant for one specification of committing carnal knowledge and one specification of wrongfully having sexual intercourse with a woman not his wife.

6.  On 18 September 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  He indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

8.  He submitted a statement with his voluntary request for discharge wherein he stated his actions led to the loss of his family and his military career.  He asked for the discharge to be characterized as under honorable conditions (general).

9.  On 11 September 1991, his immediate, intermediate, and senior commanders recommended approval of the applicant's request with the issuance of a general discharge under honorable conditions.

10.  The separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to private/E-1 and issuance of an under other than honorable conditions discharge.  The applicant was accordingly discharged on 2 October 1991.

11.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an under other than honorable conditions character of service under the provisions of chapter 10, Army Regulation 635-200.  This form further shows he completed a total of 13 years, 3 months, and 20 days of creditable active military service.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He submitted three character reference letters attesting to his maturity, involvement with the church, and support of or help to others in his community.

14.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions.

2.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant's 13 years of military service are considered.  However, he was a sergeant first class in a leadership position that had great impact on Soldiers.  He violated the trust and confidence the Army placed in him.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he 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 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)                                         AR20110005734



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ABCMR Record of Proceedings (cont)                                         AR20110005734



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