IN THE CASE OF:	  

		BOARD DATE:	    5 July 2012

		DOCKET NUMBER:  AR20120000896 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states:

* the reason for his UOTHC discharge was not the norm for him
* as a young man, he always enjoyed helping others and was a volunteer ambulance driver
* he enlisted in 1975 and had 9 years of excellent service
* he married in 1978 and is a father
* he has never missed visitations or child support payments
* when he was released from jail, he did volunteer work for the Hopewell Volunteer Rescue Squad
* he has worked construction until the industry downturn and is now unemployed, but looking for work

3.  The applicant provides two letters.

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 June 1978. 

3.  The applicant married on 5 August 1978 in Highland Falls (West Point), NY.  In 1983, the family was living on Fort Lee, VA.  While stationed at Fort Lee, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for assaulting his wife on 2 December 1983 by repeatedly striking her in the face and body with a closed fist.

4.  On 24 January 1984, the applicant was arrested by civil authorities in Chesterfield County, VA on a charge of [marital] rape.  He was placed in confinement pending trial.  On or about 30 March 1984, he was convicted and, on 18 July 1984, sentenced, "to confinement in the penitentiary of [VA] for a term of 10 years, suspended on the conditions [he] serve twelve months in the jail of [Chesterfield] County, keep the peace and be of good behavior and obey all laws, pay court costs of $120.43, Circuit Court attorney fees, and any interest that may accrue…."

5.  On 17 October 1984, the applicant's company commander initiated administrative separation action to discharge the applicant for his civil court conviction.  The battalion commander endorsed the request on the same date.  On 29 October 1984, the brigade commander endorsed the request, recommending approval.

6.  On 7 November 1984, the approval authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph          14-5a(2), for a civil court conviction and directed he receive a UOTHC discharge.  He was discharged on 13 November 1984.

7.  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 UOTHC 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.

8.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his UOTHC discharge be upgraded to an HD.

2.  The applicant was convicted of a 24 January 1984 marital rape in the Circuit Court of Chesterfield County, VA and was sentenced to 12 months in the county jail.  Prior to the rape, he received NJP for assaulting his wife by punching her in the face.

3.  The applicant’s chain of command processed him for discharge under the provisions of Army Regulation 635-200 based on his civil court conviction.  His UOTHC discharge under the provisions of Army Regulation 635-200, paragraph 14-5a, was administratively correct and in conformance with applicable regulations.  The characterization of service awarded was both proper and equitable given his prior NJP for assault.

4.  The applicant's post-service conduct is duly noted; however, that conduct is not sufficiently meritorious as to raise his discharge to one issued under honorable conditions.



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)                                         AR20120000896





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000896



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1