IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120021529 


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 that the records of her husband, a former service member (FSM), be corrected by upgrading his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states the FSM suffered a stroke that has left him totally incompetent.  Her husband explained what happened shortly before his stroke.  He told her he was drunk and just happened to be in the wrong place at the wrong time.  She believes his record shows he warrants an upgrade.

3.  The applicant provides a general power of attorney, five doctors' statements, and the FSM's 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 FSM enlisted in the Regular Army on 24 April 1977, reenlisted in 1980, and served in military occupational specialty 76Y (Unit Supply Specialist).  He was promoted to sergeant (E-5) effective 12 August 1979.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ):

	a.  on 21 June 1979, for being absent without leave and disobeying a direct order; and 

	b.  on 16 November 1979, for disobeying a direct order. 

4.  In 1979, civilian charges for assault were filed against the FSM by N____ S____.  The record does not contain any information related to the finality of these charges.  

5.  On 8 September 1980, an incident occurred involving N____ S____, a dependent wife; the FSM; Staff Sergeant L____ C____; and Specialist Four R____ H___.  The incident started at the Noncommissioned Officer's Club where the victim and her sister were drinking.  It is reported that the FSM and C____ joined them at their table.  After a number of drinks were consumed by all parties the FSM told S____ that he wanted to talk to her outside.  She said no but did go with him to talk to him near the club's door.  When S____ would not go outside with the FSM, he and C____ forced her out of the club and into C____'s car.  They drove her to the trailer house of H____ and forced her into the trailer house.  The FSM then forced S___ to have vaginal intercourse with him in the trailer's bathroom.  Upon completion of the assault by the FSM, C____ entered the bathroom and forced S____ to perform oral sex before forcing her to have vaginal intercourse.  Shortly after this H____ came into the bathroom and also had vaginal intercourse with her.  Following the third assault S____ was able to flee the trailer, walk to a convenience store, and have the clerk call the police.  A military policewoman arrived at the store and escorted S____ to the military hospital for examination and treatment.  

6.  The incident was initially investigated by the U.S. Army Criminal Investigative Command (CID) with the determination that the people involved were either Army personnel or the dependent wife of a Soldier.  

7.  The FSM and other Soldiers involved in the above incident were arrested by either the military police or the county police with a joint investigation being commenced by CID and county sheriff's office.  Because the assault was committed off base, final jurisdiction for the incident was turned over to the Cochise County, AZ county sheriff's office.  

8.  The FSM denied all of the allegations.  While admitting to having sex with the victim, he stated it was not only consensual but that the victim had initiated the sexual act and he had used no force to have sexual relations with her.  He stated he had not forced the victim into C____'s car or committed any assault upon her. 

9.  Both a local cab driver, who was waiting for a fare outside the club, and an Army staff sergeant witnessed the FSM forcing the victim into a car later identified as belonging to C____.  Both are noted as having called the military police to advise them of the altercation outside the club.  Additional witnesses from the trailer park came forward and confirmed that the victim had been forcibly dragged out of C____'s car and into H____'s trailer.

10.  On 11 September 1980, the FSM was arrested by the county sheriffs department on the charges of rape and sodomy, assault and kidnapping and detained at the county jail.  

11.  On 17 September 1980, the Soldiers were released to the custody of the Army with stringent restrictions being placed by a judge for the Superior Court for Cochise County, AZ.  

12.  On 18 September 1980, the court was advised that all three Soldiers had ignored the restrictions and the judge directed that they be reconfined in the county jail.

13.  The applicant first appeared in court on 17 November 1980.  This trial is reported as having ended in a mistrial.  

14.  On 2 November 1981, the FSM appeared in court a second time and was found guilty of causing physical harm (a class 1 misdemeanor), kidnapping (a class 2 felony), and sexual assault (a class 2 felony).  His sentence was to be confined for seven years for both felonies and six months for the misdemeanor, the sentences to run concurrently.  The applicant appealed this conviction.

15.  On 13 November 1981, following the civilian court conviction, the FSM's command commenced separation action under Army Regulation 635-200 (Enlisted Separations), chapter 14 for misconduct, civilian conviction.  

16.  On 3 June 1982, a board of officers hearing was conducted in accordance with Army Regulation 15-6 (AR 15-6) (Procedures for Investigating Officers and Boards of Officers), at which the applicant appeared with counsel.  His counsel noted that due to the fact that the applicant was appealing his county conviction, no discharge action could be undertaken until that appeal was finalized.  The board recommended that the FSM be discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct, civilian conviction.

17.  The applicant's appeals of his civilian conviction were denied. 

18.  During the investigation, civil trial, and the board of officers hearing, a number of personal statements were provided.  Without exception the personnel offering the statements all praised his dedication to the service, his job performance, personal conduct, and recommended the applicant be retained.  

19.  The general court-martial authority approved the discharge recommendation and directed the applicant receive a GD.  

20.  On 7 August 1984, the applicant was discharged as a sergeant with a GD.  He had 7 years, 1 month, and 7 days of creditable service with 3 years, 10 months, and 29 days of lost time due to incarceration.  His DD Form 214 lists his awards as the National Defense Service Medal, Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar, Army Service Ribbon, and the Overseas Service Ribbon.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:  

	a.  An HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 

	d.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

	e.  A Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present.  

		(1) A punitive discharge is authorized for the same or a closely related offense under the Manual for Courts-Martial.

		(2) The sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  

	f.  A Soldier subject to discharge under this regulation will be considered and processed for discharge even though he/she has filed an appeal or has stated his/her intention to do so.  However, execution of the approved discharge will be withheld until one of the following circumstances occurs, whichever is earlier:

		(1) The Soldier has indicated, in writing, that he/she does not intend to appeal the conviction.

		(2) The time in which an appeal may be made has expired.

		(3) The Soldier’s current term of service expires.

DISCUSSION AND CONCLUSIONS:

1.  A civil court found the FSM found guilty of rape, kidnapping and assault with bodily injury.  This finding and the imposed sentence were upheld on civilian appeal. 

2.  The FSM not only sexually assaulted the wife of another Soldier, he kidnapped and physically assaulted her and aided in her sexual assault by two other Soldiers.  The fact that both he and the victim had been drinking is not a mitigating factor in his commission of this serious misconduct, especially in light of the fact that a prior assault charge had been made by the same victim a year earlier.  

3.  The discharge authority afforded him a GD; however, in view of the facts in this case an honorable discharge is not warranted.


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)                                         AR20120021529





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021529



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1