BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110012345 


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 under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he does not remember the details but asks for a review of his discharge.

3.  The applicant provides no additional documentation.

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.  On 20 September 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).

3.  The applicant's assignment history shows:

	a.  he completed a tour of duty in the Federal Republic of Germany (FRG) from January 1978 to March 1981;

	b.  he completed tactical circuit controller training and was awarded 
MOS 31N;

	c.  In April 1981, he was assigned to Fort Benning, Georgia in MOS 31N;

	d.  he was promoted to specialist five/pay grade E-5 on 2 November 1983; and

	e.  he was assigned to Fort Richardson, Alaska on or about 7 March 1984.

4.  On 12 April 1984, the applicant was assigned to the 21st Signal Company Fort Richardson.

	a.  On 6 July 1984, he was counseled on his performance of duty which was "up and down."  He had reported late for duty and his uniform was not up to par.  He showed improvement and was encouraged to seek further leadership schools and college classes.

	b.  On 24 July 1984, the battalion commander counseled the applicant for disrespectful behavior.  He was advised to seek out and learn the proper senior - subordinate relationships and to improve his conduct.

5.  On 27 October 1984, the applicant was convicted by a general court-martial of the following offenses:

	a.  Charge I: wrongfully committing an indecent act [substituted for attempted rape];

	b.  Charge II: committing an indecent act [substituted for an indecent assault]; and



	c.  Additional Charge: driving while drunk.

6.  The applicant was sentenced to a forfeiture of $528.00 pay for 2 months and reduction to the rank of private first class/pay grade E-3.


7.  On 2 November 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

8.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 30 November 1984, the general court-martial convening authority approved the findings of guilty of charge I and its specification and of the additional charge.  The findings of charge II and its specification and the sentence were disapproved.

10.  On 30 November 1984, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge.  On 
7 December 1984, the applicant was discharged accordingly.  He had completed a total of 7 years, 2 months, and 18 days.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 134, for committing an indecent act with another person, is a punitive discharge and confinement for 5 years.

13.  Army Regulation 635-200 (Personnel Separations) sets 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his UOTHC discharge be upgraded.

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 type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's successful tour in the FRG and attainment of specialist five clearly showed he was more than capable of serving honorably.  However, his subsequent misconduct severely diminished the quality of his service.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110012345



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ABCMR Record of Proceedings (cont)                                         AR20110012345



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