IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140005314 


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 an upgrade of his under other than honorable conditions discharge.  He further requests Department of Veterans Affairs (VA) benefits.

2.  The applicant states his charges were dismissed from Article 32. 

3.  The applicant provides two pages of a DD Form 457 (Investigating Officer's Report).

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 (RA) on 4 May 1977.  On                 24 September 1979, he was honorably discharged for the purpose of immediate reenlistment.  On 25 September 1979, he reenlisted in the RA.

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 7 April 1981 for:

* disrespect toward his superior commissioned officer
* disrespect toward his superior noncommissioned officer
* being derelict in the performance of his duties
* destruction of a public record

4.  On 8 March 1984, while serving in the Federal Republic of Germany (FRG), charges were preferred against the applicant for:

* rape of N_____ S___
* committing sodomy with N_____ S___ by force and without consent
* committing sodomy with C______ T______ by force and without consent
* committing indecent assault upon N_____ S___
* committing indecent assault upon C______ T______
* wrongfully communicating a threat to injure N_____ S___
* wrongfully communicating a threat to injure C______ T______

5.  On the basis of a trial held on the 2nd and 5th of November 1984, the             1st Penal Chamber of the State Court, Fulda, FRG adjudged and decreed the applicant be sentenced to imprisonment of two years and six months for sexual compulsion.

6.  The applicant's immediate commander subsequently notified him of his intent to initiate separation action against him in accordance with Army Regulation  635-200 (Personnel Separations – Enlisted Personnel), chapter 14, misconduct, for conviction by a foreign court.  

7.  The applicant acknowledged receipt of the commander's notification.  He consulted with counsel, was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He requested consideration of his case by a board of officers and a personal appearance before a board of officers.  He elected not to submit a statement in his own behalf.

8.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

9.  On 5 June 1985, the applicant appeared before a board of officers.  The board in closed session considered the charge of serious misconduct.  After carefully considering the evidence before it the board recommended the applicant be discharged with an other than honorable discharge.

10.  On 23 August 1985, the separation authority approved the applicant's discharge under Army Regulation 635-200, paragraph 14-9a, and directed that he be issued an Under Other Than Honorable Discharge Certificate.  On                13 December 1985, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct-commission of a serious offense.  He completed a total of 7 years, 6 months, and 6 days of creditable active military service with time lost for the period 7 November 1984 through 10 December 1985.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The applicant provides two pages of the DD Form 457 pertaining to his case.  After conducting an Article 32 Investigation it appears the investigating officer recommended that all charges and specifications against the applicant be dismissed.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  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.  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 record shows the applicant was convicted of sexual compulsion by a German civil court.  His chain of command initiated separation action against him and he was accordingly notified.  He requested consideration of his case by a board of officers.  Accordingly, a board of officers convened and recommended his discharge from the service with an under other than honorable conditions discharge based on his conviction by civil court.

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The DD Form 457 provided by the applicant and contained in his record was carefully considered.  However, it is a recommendation by an investigating officer and wholly insufficient to support his contention that he should receive an upgrade of his discharge.  His misconduct clearly shows the quality of his service was diminished well below that meriting an honorable discharge.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.

5.  The available evidence shows his second enlistment was marred with misconduct that included an instance of NJP and conviction by a German civil court.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20140005314





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ABCMR Record of Proceedings (cont)                                         AR20140005314



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