BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110022697 


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 discharge under other than honorable conditions to an honorable discharge and restoration of his rank/grade to sergeant (SGT)/E-5.

2.  The applicant states he is proud of his service.  He believes he was targeted because he was gay and someone found out and made allegations against him leading to the discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Honorable Discharge Certificate.

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 on 24 February 1987 and he held military occupational specialty 13E (Cannon Fire Direction Specialist).  He was promoted to SGT/E-5 on 1 September 1989, executed a reenlistment on 31 October 1989, and served in Korea from January to May 1994.

3.  In March 1994, an investigation conducted by the Camp Casey, Korea, Resident Agency, U.S. Army Criminal Investigation Command, established probable cause to believe the applicant committed a solicitation and indecent assault as well as an indecent act.

4.  On 28 March 1994, his command preferred court-martial charges against him for one specification of committing an assault against another Soldier with intent to commit sodomy.  His immediate and battalion commanders recommended trial by a general court-martial empowered to adjudge a bad conduct or a dishonorable discharge.

5.  On 6 April 1994, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  In his request for discharge, the applicant indicated:

* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  Between 7 and 11 April 1994, the applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with issuance of an under other than honorable conditions character of service.

8.  On 19 April 1994, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service and reduction to private (PV1)/E-1.  On 5 May 1994, the applicant was accordingly discharged.

9.  The DD Form 214 he was issued shows he was discharged in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further shows he completed 7 years, 2 months, and 12 days of creditable active service.

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

11.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200 further states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

13.  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.

14.  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 contends his discharge should be upgraded and his rank/grade of SGT/E-5 should be restored.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant was not discharged for being gay.  He was discharged because court-martial charges were preferred against him for assault, not for sexual orientation.  He elected to avoid the court-martial and chose to voluntarily discharge instead.

4.  By regulation, when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.  The applicant's DD Form 214 appropriately shows his rank/grade as PV1/E-1.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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 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)                                         AR20110022697



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ABCMR Record of Proceedings (cont)                                         AR20110022697



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