IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120008589 


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 (in duplicate applications) an upgrade of his discharge under other than honorable conditions to honorable.

2.  The applicant states:

* he believes his discharge was unjust because he had insufficient counsel to represent him regarding his military career
* he was eligible to continue in the service and he believes it is right to change the type of discharge he received
* there is no misconduct in his military record

3.  The applicant provides no additional evidence.

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 22 September 1992.  He completed training as an infantryman.

3.  On 26 October 1993, the applicant was convicted pursuant to his pleas by a civil court of two counts of sexual conduct with a child under 16 years of age.  He was sentenced to 10 years of confinement in the South Dakota State Penitentiary with the sentence being suspended on the following conditions:

* that he sign and abide by the standard probation agreement with the court service department for 5 years
* that he serve 180 days in the Minnehaha County Jail, no work release at that time, with credit for time in jail from 19 August 1993 plus 11 days
* that he complete a sex offender's program as approved by the court service department for as long as court services recommends
* that he pay for any counseling costs of his victims in connection with both cases
* that he have no possession or view of pornographic material of any kind
* that he have no unsupervised contact with children under age 18 years during probation
* that he repay Minnehaha County for attorney fees through the court service department with payments to be made on a regular basis within 2 years
* that he pay $19.00 liquidated costs, $5.00 surcharge, and $2.50 victim compensation that day

4.  On 1 March 1994, the applicant was notified that he was being recommended for discharge for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The commander cited his civil conviction as the basis for the recommendation.  The applicant acknowledged receipt of the notification and elected not to submit a statement in his own behalf after consulting with counsel.

5.  The appropriate authority approved the recommendation for discharge on 22 April 1994 and directed the issuance of a discharge under other than honorable conditions.

6.  Accordingly, on 26 April 1994, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to his civil conviction.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 1 month, and 9 days of net active service with lost time on the following dates:

* 8 through 18 July 1993
* 19 August 1993 through 3 February 1994

7.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

	b.  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.  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's contentions have been noted.  However, he was issued a discharge that reflects his overall record of service.

2.  His contentions that his discharge was unjust because he had insufficient counsel and that there was no misconduct on his part are completely without merit.  His records show he was convicted pursuant to his pleas by a civil court of two counts of sexual conduct with a child under 16 years of age.  Considering the nature of his offenses, it does not appear the type of discharge he received is too harsh.

3.  The applicant did not serve honorably and a discharge under other than honorable conditions appropriately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120008589



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ABCMR Record of Proceedings (cont)                                         AR20120008589



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