IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130002278 


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 undesirable discharge be upgraded to an honorable or general discharge.

2.  He states:

* he was released 43 years ago, has regretted his one stupid act that ended his career and which has been a dark secret to his family for 43 years
* he was an E-6 with two Army Good Conduct Medals
* he graduated from Officer Candidate School (OCS)
* he feels he has paid the price during these years

3.  He provides no additional documents.  

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.  After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 8 February 1969 with a concurrent call to active duty.  

3.  On 25 June 1969, charges were preferred against him for four specifications of indecent exposure in public. 

4.  On 6 August 1969, he requested resignation for the good of the service under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 5.  He declined to appear before a 
court-martial or board of officers.  He acknowledged he had not been subjected to coercion with respect to this resignation and has been advised of and fully understood the implications of this action.  

5.  On 26 November 1969, he was discharged under the provisions of Army Regulation 635-120 with an undesirable discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he had completed a total of 6 years, 9 months, and 12 days of active military service with no lost time during the period under review.

6.  On 20 January 1978, the Army Discharge Review Board denied relief for an upgrade of his discharge under the Special Discharge Review Program. 

7.  Army Regulation 635-120 implements the statutory provisions of Title 10, 
U. S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100 (Personnel Separations - Officer Personnel), paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1-21a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.  

9.  Army Regulation 600-8-24, paragraph 1-21b, 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 voluntary request for separation under the provisions of Army Regulation 635-120, chapter 5 for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  Considering the seriousness of the applicant's offenses, it appears that his service was appropriately characterized.  The applicant may feel that an undesirable discharge was unwarranted, however, based on the available evidence he could have been tried by a general court-martial and he would have a federal conviction on his records.  Or, he could have accepted trial by court-martial and been exonerated of all charges.  

3.  After a review of the available evidence, it is determined the applicant has not presented sufficient evidence which warrants undesirable discharge to an honorable or general discharge.

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)                                         AR20130002278





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ABCMR Record of Proceedings (cont)                                         AR20130002278



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