IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110016018 


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 under other than honorable conditions discharge to honorable
* Restoration of his rank/grade to staff sergeant (SSG)/E-6 from private (PVT)/E-1

2.  The applicant states, in effect, his former spouse filed false charges against him and he was convicted by a civilian court and incarcerated.  This caused him to go into an absent without leave (AWOL) status and led to his reduction in rank.  She knew filing charges was the fastest way the military would act because at the time the Army was offering domestic violence and abuse classes.

3.  The applicant provides:

* A statement of support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)
* Two Standard Forms 88 (Report of Medical Examination)
* Two DA Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* A letter



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's records show he enlisted in the Regular Army on 17 July 1979 and he held military occupational specialty 31L (Wire Systems Installer).  He was awarded the Army Service Ribbon, Noncommissioned Officer (NCO) Professional Development Ribbon with Numeral 2, Overseas Service Ribbon with Numeral 3, Army Good Conduct Medal (3rd Award), Army Achievement Medal (1st Oak Leaf Cluster), Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanic Badge.  He was promoted to the rank of SSG on 8 April 1987.

3.  He was assigned to the 67th Signal Battalion, Fort Gordon, GA.

4.  On 13 April 1990, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 2 April to 6 April 1990.  He was reduced to the rank/grade of sergeant (SGT)/E-5, given 30 days of extra duty, and a forfeiture of $100.00 pay for 2 months.

5.  On 21 September 1990, the U.S. Navy Family Advocacy Office, U.S. Navy Hospital, Orlando FL, reported to Fort Gordon, GA, that the applicant's two minor children had been referred to the Florida State Department of Human Rehabilitative Services, Kissimmee, FL, as possible victims of sexual abuse by their father, the applicant.

6.  On 27 September 1990, a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation was initiated by the Fort Gordon Field Office.

7.  On 17 October 1990, the applicant was apprehended by civilian authorities in Augusta, GA, and confined in Richmond County Jail on charges of sexual abuse of his two minor children.
8.  On 25 October 1990, his confinement location was changed to Osceola County Correctional Facility, Kissimmee, FL.

9.  A CID Report of Investigation, dated 10 December 1990, stated an investigation by the Kissimmee Police Department and CID revealed the applicant indecently assaulted his two children during a 6-day period in August 1989.

10.  On 7 May 1991, he was convicted by a civil court of one count of a lewd act in the presence of a child and two counts of lewd assault upon a child and sentenced to incarceration at Osceola County Correctional Facility for 1 year.

11.  On 25 June 1991, he was notified by his immediate commander that a board of officers had been directed to determine if he should be discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, for misconduct - civil conviction.  

12.  On 8 July 1991, he acknowledged receipt of the notification of his proposed discharge action and of the procedures and rights that were available to him.  He did not indicate whether he waived his right to an administrative board, consultation with legal counsel, or elected to submit statements on his own behalf.  

13.  On 11 July 1991, he was notified that separation action had been initiated against him under the provisions of Army Regulation 635-200, chapter 14.

14.  On 26 and 29 August 1991, his intermediate and senior commander, respectively, recommended approval of his separation action with the issuance of an under other than honorable conditions discharge.

15.  On 16 September 1991, an official with the Osceola County Clerk's Office verified that the applicant had not appealed his conviction.

16.  In an undated statement, the Fort Gordon staff judge advocate concurred with the recommendation that the applicant receive an under other than honorable conditions discharge and stated:

	a.  The applicant's failure to indicate whether he wanted a board, counsel, or to submit statements constituted a waiver of those rights.  The applicant was given legal counsel's phone number on at least three occasions and failed to contact him.  That failure was a refusal to consult with counsel and by doing so he waived his right to consult with counsel by refusing the services of legal counsel.
	b.  In accordance with Army Regulation 635-200, paragraph 2-14c, if a Soldier in civil confinement does not reply by the given date, the separation authority will proceed as if the Soldier responded.  The applicant acknowledged receipt of the notification on 8 July 1991 and his commander suspended action until 15 August 1991 in order to give him the opportunity to exercise the rights listed in the notification but he failed to do so. 

17.  On 7 October 1991, the separation authority approved his discharge action under Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an under other than honorable conditions discharge and reduction to the rank/grade of PVT/E-1.  On 17 October 1991, he was discharged accordingly.

18.  The DD Form 214 he was issued confirms he was discharged in the rank of PVT/E-1 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - civil conviction, with an under other than honorable conditions characterization of service.  He completed 11 years, 2 months, and 21 days of creditable active service with 371 days of time lost.

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

20.  The applicant provides a statement of support, dated 12 November 2010, wherein his employer stated the applicant had been a trustworthy, dependable, and honest employee with the company for the past 15 years.

21.  Army Regulation 635-200 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.  

22.  Army Regulation 635-200, paragraph 1-14 states when a Soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

23.  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.

24.  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 evidence of record shows the applicant was convicted by a civil court for committing a lewd act and the lewd assault of his two minor children and he was sentenced to confinement in a State correctional facility.  Accordingly, separation action was initiated against him

2.  His separation action 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 reason for discharge was appropriate considering all the facts of the case.  His record of misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or general discharge.

3.  The evidence of record also shows he was properly reduced from the rank of SSG to SGT in April 1990 as the result of the UCMJ action for being AWOL.  In addition, in accordance with applicable regulations he was properly reduced in rank from SGT to PVT/E-1 as the result of his under other than honorable conditions discharge.  Therefore, he is not entitled to the restoration of the rank of SSG.

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)                                         AR20110016018



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ABCMR Record of Proceedings (cont)                                         AR20110016018



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