IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110017889 


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 a general discharge.

2.  The applicant states, in effect, that while he admits to making a mistake and violating military rules, the overall punishment he received was excessive.  He goes on to state that he completed 15 years of military service.  He served in Germany, Korea, and saw action in Panama.  He believes that he has earned at least a general discharge, due to his many accomplishments over the years.  He continues by stating that he has been sick the past year, unable to work, and needs at least a general discharge to get benefits from the Department of Veterans Affairs.  He further states that he deserved to be punished but he has been punished long enough.

3.  The applicant provides a one-page explanation of his application, a copy of a job performance evaluation, a third-party letter of support, and copies of 19 commendatory certificates and diplomas received while on active duty.

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 for a period of 3 years on 26 July 1977.  He completed basic training at Fort Bliss, Texas and advanced individual training as a light weapons infantryman at Fort Benning, Georgia.

3.  He remained on active duty through a series of continuous reenlistments, served two tours in Germany, one tour in Korea, and he participated in Operation Just Cause in Panama.   

4.  He was promoted to the pay grade of E-7 on 1 February 1991.  He was married and had four dependents when he was assigned to Fort Jackson, South Carolina for duty as a senior drill sergeant.

5.  On 4 May 1993 charges were preferred against the applicant for:

* Wrongfully engaging in an improper association with a Soldier-in-training by wrongfully taking her into his office alone, wrongfully kissing her, rubbing her breasts, and genital area, taking her into the TA-50 room, and engaging in sexual intercourse
* Wrongfully engaging in an improper relationship with a Soldier-in Training by embracing her from behind in the hallway of the barracks after lights-out, by wrongfully rubbing his groin against her buttocks, slapping and grabbing her buttocks
* Maltreatment of a Soldier-in-Training by wrapping his arms around her shoulders and rubbing his groin area against her buttocks
* Maltreatment of a Soldier-in-Training by slapping and grabbing her buttocks
* Wrongfully having intercourse with a Soldier-in-Training, a married woman not his wife (adultery)
* Two specifications of wrongfully committing an indecent assault upon  Soldiers-in-Training with intent to gratify his lust and sexual desires

6.  On 24 May 1993, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf whereas he requested that his accomplishments be considered and the fact that he was married with children and requested that he be furnished a General Discharge Certificate in order to better provide for his family.

7.  The appropriate authority (a major general) approved his request for discharge, on 18 June 1993, and directed that he be discharged under other than honorable conditions.

8.  Accordingly, on 15 July 1993, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the serious nature of his offenses and his rank at the time.  

4.  The applicant violated the trust placed in him as leader and a noncommissioned officer and in doing so his service simply does not rise to the level of 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)                                         AR20110017889



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ABCMR Record of Proceedings (cont)                                         AR20110017889



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