BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120008625 


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 honorable conditions (UOTHC) discharge.

2.  The applicant states:

   a.  The civilian conviction was based on a babysitter's statement that he inappropriately touched his then 10 year old daughter who is now 32 years old.  There was no repeat and inappropriate touching.  The civilian court took the statement and placed him in jail.  He was offered a deal after being incarcerated for almost 120 days.  If he pled "No Contest" he could be released from jail and separated from the Army.  He took the deal after being told by the Army that he would receive a general discharge.
   
   b.  He was a good Soldier during his entire time in the Army.  The Army failed him, he did not fail the Army.  He was proud of his service up until this point.   Had he been offered any legal assistance from the Army there might have been a different outcome.  None was offered or given.  After his separation he completed two years of counseling and four year of probation and then promptly left the State of Alaska (AK).
   
   c.  After leaving AK, he and his wife went on to raise five children, one of whom passed away at the age of 21 years.  Two of the remaining four are currently serving in the Army and the two who graduated from college are leading happy and fruitful lives.  He is currently receiving health care services from the Department of the Veterans Affairs (VA) based on his prior honorable service.  Any further services are negated by the UOTHC discharge.  He has submitted a disability claim for service-connected disability compensation.

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

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's military record shows he enlisted in the Regular Army, in pay grade E-1, on 21 November 1983, for 3 years.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was promoted to pay grade E-5 on 4 December 1986.  

3.  He was honorably discharged from active duty on 20 January 1988 for the purpose of immediate reenlistment.  He reenlisted on 21 January 1988 for 5 years.  

4.  On 20 March 1990, he was convicted by the Superior Court for the State of AK of sexual abuse of a minor in the second degree.  He was sentenced to three years confinement with two and one-half years suspended and four years probation upon release.

5.  On 19 April 1990, the applicant's company commander notified the applicant he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, section III, for conviction by civil court, with an UOTHC discharge. The basis for the action was the applicant's civil conviction of sexual abuse of a minor.


6.  On 30 April 1990, the applicant acknowledged the proposed separation action for conviction by civil court.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged his understanding that, as a result of issuance of a discharge UOTHC, he might be ineligible for many or all benefits as a veteran.

7.  On 1 May 1990, the applicant’s company and battalion commanders recommended approval of the applicant's separation with an UOTHC discharge.  The applicant's battalion commander stated the applicant's civil conviction for sexual assault of a minor warranted that the applicant be processed from the U.S. Army.

8.  On 16 May 1990, the appropriate separation authority approved the discharge and specified the issuance of an UOTHC discharge and reduction to pay grade E-1. 

9.  He was separated on 23 May 1990, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, section III, for Misconduct-Conviction by Civilian Authorities.  His character of service was UOTHC.   He was credited with completing 6 years, 2 months, and 3 days of net active service.  He had time lost from 29 December 1989 through 27 April 1990.

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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of a conviction by civil authorities.  A discharge UOTHC was normally appropriate for a Soldier discharged under that chapter.  The separation authority could have directed a general discharge if such a discharge was merited by the Soldier's overall record.

   b.  Paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.



   c.  Paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a civilian court of sexual abuse of a minor during his second term of service which resulted in his being discharged under the provisions of Army Regulation 635-200, chapter 14, section III, for this conviction by civilian authorities.

2.  The evidence also shows that after his civilian confinement he was notified by his company commander of his intention to separate him from the Army, and that if discharged, he could receive a discharge UOTHC.  After consulting counsel, he acknowledged the notification, waived his rights, and elected not to submit a statement in his own behalf.   

3.  His contentions have been noted; however, he has not shown his discharge was unjust or in error.  He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

5.  It is also noted that the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20120008625





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ABCMR Record of Proceedings (cont)                                         AR20120008625



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