BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130007036 


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 discharge.

2.  The applicant states that when he reenlisted in the Regular Army (RA) in 1984 he received his fourth honorable discharge.

   a.  He was affected by considerable life-altering circumstances while in the Army and he takes responsibility for the action that caused him to receive a discharge under less than honorable conditions.

   b.  He states he internalized his personal history and was not able to discuss his feelings with anyone, even with therapeutic treatment.  After almost 25 years of shame, self-punishment, and continuous psychological torment, he needs to have value as a person.

   c.  Since leaving military service he has worked to be a different person in both his personal and professional life.

3.  The applicant provides copies of his Enlisted Evaluation Reports (EERs); letters of appreciation, commendation, and recommendation; professional credentials; and documents relating to his post-service achievements.

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 the RA on 28 January 1971.  He was awarded military occupational specialty (MOS) 91P (Radiographic Specialist).  He later completed the Cardio-Pulmonary Technician course and was awarded MOS 91N (Cardiac Laboratory Specialist) in 1978.

3.  Two DD Forms 214 (Reports of Separation from Active Duty) show the applicant had honorable active duty enlisted service in the RA from:

* 28 January 1971 through 25 January 1974
* 26 August 1975 through 27 August 1979

4.  The applicant reenlisted in the RA on 28 August 1979 for a period of 5 years.  
He was promoted to specialist six/pay grade E-6 on 4 June 1980.  He then reenlisted in the RA on 29 May 1984 for a period of 6 years.  He was laterally appointed to staff sergeant (E-6) effective 1 October 1985.

5.  On 24 February 1987, court-martial charges were preferred against the applicant for:

* on 26 November 1986, wrongfully committing sodomy with a female Soldier who was on active duty for training (ADT); he was her direct supervisor at the time of the offense
* on 26 November 1986, wrongfully committing an indecent act with a female Soldier who was on ADT; he was her direct supervisor at the time of the offense
* on 21 January 1987, wrongfully committing an indecent act with another female Soldier who was on ADT; he was her direct supervisor at the time of the offense

6.  On 13 March 1987, the applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.
   a.  He acknowledged that he was guilty of the charges against him, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  He added that he did not desire further rehabilitation because he had no desire to perform further military service.

   b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.
	
	c.  The applicant and his counsel placed their signatures on the document.

   d.  The applicant submitted a statement in his own behalf and stated an administrative discharge would be in his family's best interest.  He added he was hospitalized in the psychiatric unit at Fitzsimons Army Medical Center (FAMC) on 22 January 1987 and readmitted on 2 February 1987.  He was not sure that he could "stand up under the strain of a court-martial" and a discharge would make his life whole again and keep his family together.  He also provided a summary of his achievements during his military career.

7.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

8.  The separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Discharge or Release from Active Duty) shows he was discharged on 13 April 1987 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.
   
   a.  He completed:
   
* 7 years, 7 months, and 15 days of net active service this period
* 6 years and 9 months of total prior active service
* 1 year and 10 months of total prior inactive service
   
   b.  Item 18 (Remarks) does not show his immediate reenlistments.
10.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

11.  In support of his application the applicant provides the following documents:

   a.  Six EERs that provide evidence of the applicant's successful duty performance in various positions spanning the period from September 1978 through August 1986.

   b.  Sixteen letters of appreciation, commendation, and recommendation that offer evidence of the applicant's skills and achievements in various positions spanning the period from 26 June 1973 to 11 September 1985.

   c.  Two letters of recommendation, dated 18 March and 31 March 1987, in which the Chief, Cardiology Service, and Director, Coronary Care Unit, FAMC, offered their recommendation of the applicant.

   d.  Four documents that show the applicant:

* completed Emergency Care and Transportation of the Sick and Injured on 21 June 1976
* was licensed as a Radiologic Technologist in the State of West Virginia from 21 May 1991 through 31 May 2000
* ordained a Deacon in the First Presbyterian Church, Bluefield, West Virginia on 17 May 1998

   e.  Seventeen letters, along with 20 articles and pictures, that offer evidence of the applicant's professional accomplishments and his contributions to public service spanning the period from 13 February 1992 to 4 January 2006.

   f.  VA letter, dated 7 February 2013, that provided the applicant information on the status of his claim for service connection for hypertension; right hallux condition (stiff big toe); any lower back condition; any knee condition; any sleep disorder; and any acquired psychiatric condition, to include depression and anxiety.

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

	a.  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.

	b.  Chapter 3, paragraph 3-7a, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Chapter 3, paragraph 3-7b, 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.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated, in part, to enter in item 18 a list of enlistment periods for which a DD Form 214 was not issued.  For example, immediate reenlistment this period:  790828-840528.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he acknowledges his responsibility for the action that caused him to be discharged and he has worked to be a different person in both his personal and professional life since being discharged.

2.  Records show that two DD Forms 214 document the applicant's honorable active duty enlisted service in the RA from:

* 28 January 1971 through 25 January 1974
* 26 August 1975 through 27 August 1979

3.  The applicant had two reenlistments during the period covered by his final
DD Form 214.

   a.  Item 18 of the DD Form 214 does not show the period of the first reenlistment.

   b.  Thus, it would be appropriate to show the period of the first reenlistment because a Soldier cannot reenlist without first being honorably discharged. 
4.  Given the above correction, the applicant's prior periods of honorable service will be correctly documented in his military records.

5.  Subsequent to his reenlistment on 29 May 1984, the applicant submitted a request for discharge.

6.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and the characterization of his service were appropriate and equitable.

7.  The applicant was serving as a noncommissioned officer when he committed offenses with female Soldiers who were in training and under his direct supervision.  Each offense was punishable by a punitive discharge; however, the applicant requested administrative discharge in lieu of trial by court-martial.  Clearly, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or an under honorable conditions (general) discharge.

8.  The applicant's post-service conduct was considered.  However, given the nature and seriousness of the offenses that the applicant acknowledged he was guilty of, his post-service conduct provides an insufficient basis for upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X______  __X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following entry to item 18 of his DD Form 214 for the period ending 
13 April 1987:  "IMMEDIATE REENLISTMENT THIS PERIOD:  19790828 -19840528."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his entire period of service to either an honorable discharge or an under honorable conditions (general) discharge.




      _______ _  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)                                         AR20130007036



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007036



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1