IN THE CASE OF:	  

		BOARD DATE:	    3 April 2014

		DOCKET NUMBER:  AR20130011664 


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, in effect, upgrade of his "dishonorable" discharge. 

2.  The applicant states a girl's parents accused him of trying to date her.  A court date was set but neither the girl nor her parents came to court and the case was thrown out.  He was later told by his superiors to take a "dishonorable" discharge or be tried by a court-martial.  He did not know what it meant and he took their advice.  When he found out that he was given wrong advice, he was instructed to file to have his discharge changed.

3.  The applicant provides no additional documentation in support of his request.

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 Regular Army on 9 August 1978.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  Item 21 (Lost Time) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was absent without leave for the period 22 February 1979 through 26 February 1979.

4.  On 10 October 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for not being at his place of duty.

5.  A DD Form 458 (Charge Sheet), dated 9 January 1980, shows court-martial charges were preferred against the applicant for:

* raping a female under the age of 16 years
* committing sodomy on a female under the age of 16 years
* wrongfully having sexual intercourse with a woman not his wife

6.  On 19 March 1980, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He admitted he was guilty of the charges against him or a lesser included offense.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.

7.  On 25 April 1980, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be given an under other than honorable conditions discharge.  On 16 May 1980, he was discharged accordingly.  He had completed a total of 1 year, 9 months, and 8 days of creditable active service with 5 days of lost time.

8.  There is no evidence in the applicant's military service records that shows he was coerced into requesting discharge in lieu of court-martial.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in 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.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  Evidence of record shows he had been charged with three counts of sexual misconduct and he admitted he was guilty of the charges or a lesser included offense.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or a general discharge.

4.  The applicant contends that he was coerced into requesting discharge in lieu of court-martial.  There is no evidence and the applicant did not provide any evidence supporting that contention.  In fact, after reviewing the court-martial charge preferred against him, he voluntarily requested discharge.  He failed to make a statement at that time where he could have raised this issue in mitigation.  Accordingly, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  As such, there is no evidence of error or injustice in the reason for his discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130011664





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ABCMR Record of Proceedings (cont)                                         AR20130011664



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