IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002872 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant states his discharge was improper because the court-martial charges were dismissed.  The reported allegations were never proven and found to be false with his wife recanting her allegations. 

3.  The applicant provides a copy of a letter of support.

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 Regular Army on 13 July 1992, completed training, and was awarded the military occupational specialty 16R (Vulcan Crewmember).
3.  The record shows he received three negative counseling statements in 1993 for failure to report, failure to follow instructions, and restriction following an arrest.  The available record does not identify why or by whom the applicant was arrested.

4.  On 28 June 1994, the applicant received nonjudicial punishment for disobeying a lawful order and underage drinking. 

5.  On 15 November 1994, the applicant was reduced from pay grade E-3 to pay grade E-2.  The reason for this reduction is not of record.

6.  On 17 January 1995, the applicant was charged with violating: 

* Article 92 - disobeying a lawful general order, two specifications - failure to register a privately owned firearm and storing a privately owned weapon and ammunition in government family quarters without authority
* Article 111 - drunk driving
* Article 120 - rape
* Article 125 - sodomy
* Article 128 - assault 
* Article 128 - assault and battery, two specifications

7.  The rape, sodomy, and three assault specifications involved his wife.

8.  The charges were referred to a general court-martial on 28 February 1995.

9.  On 20 March 1995, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge UOTHC.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

10.  On 2 March 1995, the court-martial convening authority approved the applicant's request for discharge in lieu of trial by court-martial.  He ordered the applicant be discharged, that he be immediately reduced to pay grade E-1, and that the charges be withdrawn and dismissed effective the day following (emphasis added) his discharge.

11.  On 14 April 1995, the applicant was discharged under Army Regulation 635-200, chapter 10 with a discharge UOTHC.  He had 2 years, 9 months, and 2 days of creditable service.

12.  The letter of support, from his current mother-in-law, states the applicant has not let the negative aspects of his divorce and military discharge hold him back.  He is active in his church and in his three children's lives, one of whom has mental and medical challenges.  He is a man of integrity and high moral character. 

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

	a.  Paragraph 3-7b states that 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. 

	b.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for each of the charges under Articles 92, 111, 120, 125, and two of the specifications under Article 128.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's misconduct commenced shortly after his enlistment and accelerated in severity until the charges that led to his discharge.

3.  The court-martial charges were not dismissed due to any factor related to specifics of the charges or any possible recanting of testimony on the part of his wife.  The charges were dismissed effective the date after his discharge because the Army would no longer have jurisdiction over the applicant at that point.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130002872





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ABCMR Record of Proceedings (cont)                                         AR20130002872



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