IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017769 


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 upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions.

2.  The applicant states his sexuality was used to determine his discharge.  The fact that he is a homosexual should not have affected his almost seven years of service.

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, a Regular Army sergeant (pay grade E-5) with approximately 6 1/2 years of active duty service, committed an offense for which he ultimately requested discharge in lieu of trial by court-martial.

3.  Charges were preferred on 31 March 1987 for committing sodomy under Article 125 of the Uniform Code of Military Justice (UCMJ).  The specification reads:

In that Sergeant C____…did at...a community located in close proximity to Fort Bliss, Texas, a U.S. Military Installation, during May 1986, wrongfully commit sodomy upon an enlisted soldier assigned to his unit and duty section with whom he had a supervisory duty relationship, Specialist Four Daniel V. A____: by…removing his own clothing…. exposing (himself)…unzipping A___'s pants and pulling them down… placing A____'s penis in his mouth….Court martial jurisdiction attaches to the offense because it was committed by a noncommissioned officer upon an enlisted soldier who was assigned to the same unit and who worked in the same duty place.  Sergeant C____ was in a position in which he was called upon as a result of his rank and duty assignment to exercise supervisory control over Specialist Four A____.  Sergeant C____initiated the offense by inviting Specialist Four A____ to go out drinking while both soldiers were in the performance of their duties…Sergeant C____ later picked up Specialist Four A____ at the…Troop Billets,…took him off post.  The act occurred in an apartment in close proximity to…Fort Bliss, Texas…the offense has adversely affected Sergeant C____'s ability to perform his duties as a noncommissioned officer.

4.  The applicant consulted with counsel and voluntarily 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.  He indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for benefits administered by the Veterans Administration.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

5.  His personal statement at that time requested a general discharge.  He stated that a general discharge was warranted because:


* he had served since June 1980 with no UCMJ action against him
* he had served in Korea during 1983-1984
* he was married and had a home in El Paso
* a general discharge would improve his employability and help him provide for his family
* he acknowledged the seriousness of the charges against him but believed that his record reflected that he had been a dedicated Soldier

6.  The chain of command recommended approval of the applicant's request and separation with a discharge under other than honorable conditions.  The separation authority approved the applicant's voluntary request and directed his reduction to pay grade E-1 and discharge under other than honorable conditions.

7.  On 29 May 1987, the applicant was discharged under the provisions of Army Regulation 635-200.  He had 6 years, 7 months, and 29 days of creditable service.  His DD Form 214 listed his authorized awards as the Army Service Ribbon, Army Good Conduct Medal (2nd Award), Overseas Service Ribbon, Army Achievement Medal, and Noncommissioned Officer Professional Development Ribbon.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  

	c.  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.

9.  The Manual for Courts-Martial (1984 Edition) provides:

	a.  that sodomy, under Article 125, UCMJ is carnal copulation with another person involving taking into or placing the sexual organ in any bodily opening other that the sexual organ.  

	b.  Article 134, UCMJ is the general article that provides that all disorders or neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and all crimes and offenses not capitol shall be taken cognizance of by courts-martial.

	c.  Some specific behaviors under Article 134 that appear to be subsumed in the specification of the applicant's behavior and could be considered to have been prejudicial to good order and discipline in the armed forces, or of nature to bring discredit upon the armed forces, include:

* Adultery
* Assault (indecent)
* Indecent exposure
* Indecent acts
* Soliciting another to commit an offense 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge under the provisions of chapter 10, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and punitive discharge he might have received.  Thus, his misconduct and his actions to avoid the consequences became the determining factors in the characterization of his service.

2.  The applicant had demonstrated the capacity for honorable service.  Clearly, his behavior was prejudicial to good order and discipline in the armed forces, and of nature to bring discredit upon the armed forces.  

3.  Furthermore, it was a direct abuse of the trust and confidence placed in him as a noncommissioned officer.  He had a duty to care for the welfare of his subordinates; however, he chose to take advantage of his position.

4.  His sexual orientation was and is irrelevant.  It was his misconduct as a noncommissioned officer that was relevant.

5.  In view of the foregoing findings and conclusions, there is insufficient justification to grant the requested relief.
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)                                         AR20120017769





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120017769



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1