IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110017829 


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.

2.  The applicant states there was no evidence he was guilty of the alleged offense of rape other than the statement of the alleged victim.  

	a.  He states, while he was working at the Military Entrance Processing Station (MEPS) as a test administrator, the alleged victim attempted to re-qualify for military service.  She failed the entrance test and pleaded with him to change her scores; however, he refused.  She continued to try and influence him to change her test scores, including having consensual sexual relations with him.  Immediately thereafter, he learned that law enforcement officials were looking for him because he was charged with rape.

	b.  He states during his time at the MEPS in Charlotte, NC, unethical and illegal behavior was prevalent among staff members that included consensual sexual relationships.

	c.  He was coerced into accepting a plea agreement to sexual assault because he was facing time in prison and he didn't have $5,000.00 for his defense. 

	d.  His administrative separation board solicited the opinions of Soldiers about the type of Soldier he was and other incidents he was involved in that were completely unrelated to the offense he was charged with.  However, the fact that he had dated the alleged victim after she was disqualified from military service was never mentioned.

3.  The applicant provides, in support of his request, copies of his administrative separation board proceedings and discharge document.

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 (RA) on 21 January 1977.  He was awarded military occupational specialty 71L (Administrative Specialist).  He reenlisted in the RA on 10 January 1980 and again on 15 October 1984.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully demonstrating partiality and wrongfully attempting to develop an intimate relationship with Sheila A. C----, an applicant at the Charlotte MEPS, on 9 December 1987.

	a.  The applicant did not demand trial by court-martial; he requested a closed hearing; a person to speak in his behalf was not requested; and indicated he would present matters in defense, mitigation and/or extenuation.

	b.  His punishment was reduction to grade E-4 (suspended for 180 days).  He did not appeal the NJP.

4.  Fort Bragg District, Third Region, U.S. Army Criminal Investigation Division Command, Fort Bragg, NC, letter, dated 19 October 1988, subject:  Report of Investigation, shows the applicant was charged with the offense of aggravated sexual abuse of Wendy A. A-----, on 22 June 1988, at the Charlotte MEPS.  A complaint was filed before the U.S. District Court on 22 June 1988 and an arrest warrant was issued.  The applicant was arrested on 23 June 1988.
5.  On 24 January 1989, the company commander notified the applicant that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, due to commission of a serious offense.

6.  On 3 February 1989, the applicant was notified of the separation board and advised of his rights, including his right to representation by counsel even if he were absent. The applicant refused to sign the notification letter.  However, he requested conditional waiver of an administrative separation board in exchange for a discharge under honorable conditions.  The separation authority disapproved the request.

7.  On 20 February 1989, a Board of Officers convened to determine if the applicant should be discharged from the U.S. Army due to misconduct based on commission of a serious offense (sexual assault).
	
	a.  The Summarized Record of Proceedings show the applicant was represented by counsel.

	 	(1)  The applicant's First Sergeant testified (in part), "(the applicant) was tried and found, well, he wasn't found guilty he was tried and by plea bargaining he accepted a lesser charge.  He was convicted of having sex with force."  

	 	(2)  The board recorder/reporter noted, "perhaps now is a good time to state for the record you should not hold the plea bargaining process against (the applicant) that's the way the system is designed to run."

	 	(3)  The applicant submitted a statement to the President of the Administrative Separation Board, dated 20 February 1989.  He requested a general discharge.  He acknowledged being sentenced on 20 January 1989 to
18 months in civilian confinement for having committed an act of sexual contact.

	 		(a)  He provided a summary of his military service, personal achievements, and family life.

	 		(b)  The applicant and his counsel each placed their signature on the statement.

	b.  The board found the applicant did commit the alleged misconduct of sexual assault and recommended the applicant be discharged from the Army with an under other than honorable conditions discharge.

8.  On 27 April 1989, the separation authority approved the board's recommendation for discharge of the applicant and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct based upon commission of a serious offense with an under other than honorable conditions discharge.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 May 1989 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with his service characterized as under other than honorable conditions.  He completed 11 years, 10 months, and 21 days of active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 (one for which a punitive discharge is warranted and authorized), 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Chapter 3, 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.  Chapter 3, 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 contends his discharge should be upgraded because the administrative separation board solicited the opinions of Soldiers about the type of Soldier he was and other incidents he was involved in that were completely unrelated to the offense he was charged with and there was no evidence he was guilty of the alleged offense other than the statement of the alleged victim.

2.  The evidence of record shows the applicant was found guilty of sexual assault and he was sentenced to 18 months in civilian confinement.  In his statement to the President of his Administrative Separation Board he acknowledged this fact.  Thus, his contention that there was no evidence he was guilty of the offense other than the statement of the alleged victim is both inaccurate and untrue.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

	a.  The applicant was advised by consulting counsel regarding the separation action.  He was represented by counsel and he submitted a statement in his own behalf.

	b.  The separation authority considered the recommendation of the administrative separation board and approved the applicant's separation with an under other than honorable conditions discharge.

	c.  The type of discharge directed and the reason therefore was appropriate and equitable.

4.  Based on the nature of the applicant's offense and the fact he was convicted and sentenced to 18 months in civilian confinement, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of all 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)                                         AR20110017829



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ABCMR Record of Proceedings (cont)                                         AR20110017829



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