IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130004674 


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 an honorable discharge.

2.  The applicant states he has worked for 22 years and is only now asking for an upgrade of his discharge.

3.  The applicant provides his résumé and 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.  On 15 September 1977, the applicant enlisted in the Regular Army.  He was awarded military occupational specialties 11B (Infantryman) and 27F (VULCAN Repairer).  The highest rank he held was staff sergeant (SSG)/E-6.

3.  He continued his service through reenlistments.

4.  A DD Form 458 (Charge Sheet) shows that on 3 December 1990 court-martial charges were preferred against the applicant for:

* failing to obey a lawful order by wrongfully dating and maintaining an intimate personal association with a female student in the rank of private first class under his supervision as an instructor
* dereliction in the performance of his duties as an instructor in that he willfully supplied answers to a test he was monitoring to that student in order for her to pass the examination
* wrongfully having sexual intercourse with a female student, a woman not his wife

5.  On 10 January 1991, having consulted with legal counsel, he was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.


	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished an under other than honorable conditions discharge.  He acknowledged he had been advised of and understood the possible effects of an under other than honorable conditions discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.

7.  His chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

8.  On 25 January 1991, the separation authority, a major general, approved his request to be discharged under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be given an under other than honorable conditions discharge and reduced in rank to the lowest enlisted rank/grade of private (PV1)/E-1.

9.  On 1 February 1991, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in accordance with the separation authority's decision with an under other than honorable conditions discharge.  He completed 13 years, 4 months, and 17 days of creditable active service.

10.  On 15 June 1994, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

11.  He provides his résumé showing post-service employment since 1992.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's post-service conduct and achievements are noted.  Generally, post-service conduct and achievements are an insufficient basis for upgrading a properly-issued discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with failing to obey a lawful order; dereliction in the performance of his duties; and wrongfully having sexual intercourse with a female student, a woman not his wife.  These offenses could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  This serious misconduct warranted his under other than honorable conditions discharge.  Both his character of service and the reason for his discharge were appropriate considering the facts of the case.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a 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)                                         AR20130004674



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ABCMR Record of Proceedings (cont)                                         AR20130004674



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