BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019578 


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 his general under honorable conditions discharge (GD) be upgraded to fully honorable (HD).

2.  The applicant states:

* he never physically assaulted the person in question
* he was falsely accused
* he is trying to obtain a post-traumatic stress disorder (PTSD) disability rating from the Department of Veterans Affairs (DVA)

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DVA letter
* a DVA Statement in Support of Claim

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 was in the Regular Army from 24 February 1989 through 24 June 1992.

3.  The applicant was married.  He was transferred to Korea.  He had sex with two fellow female Soldiers for which he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for adultery on 30 April 1992.

4.  On 14 May 1992, the applicant accepted NJP for the attempted rape of a third female Soldier on 13 May 1992.

5.  On 19 May 1992, the applicant's company commander initiated administrative separation action against him under the provisions of Army Regulation (AR) 635-200, chapter 14, for misconduct – commission of a serious offense.  The applicant acknowledged notification on the same date.

6.  On 29 May 1992, the applicant consulted with legal counsel who advised him of the contemplated action to separate him, its effects, and his rights.  He chose to make a statement in his own behalf.  He asked not to be discharged, saying that:

* his marriage was on the rocks
* he had consensual sex with the two female Soldiers because all concerned were lonely
* he did not rape or attempt to rape the third female Soldier and her story is a lie
* he provided support statements from his first sergeant and other Soldiers in the unit attesting to his worth as a Soldier

7.  On 9 June 1992, the separation approving authority approved the applicant's separation with a GD.  He was discharged with a GD on 24 June 1992.

8.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.


9.  Army Regulation 635-200 (Personnel Separations) 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.  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 regulation.

10.  Army Regulation 635-200 (Personnel Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an HD was carefully considered; unfortunately, it lacks merit.

2.  The applicant received two NJPs.  He was punished for having adulterous relationships with two female Soldiers.  He was also punished for the attempted rape of a third female Soldier.

3.  The approval authority could have given the applicant an under other than honorable conditions discharge, but elected to give him a GD in recognition of his prior good service.

4.  Given his misconduct, the discharge received was more than generous.  He has not shown a valid reason to upgrade it.


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)                                         AR20110019578





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ABCMR Record of Proceedings (cont)                                         AR20110019578



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