IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007461 


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 to an honorable discharge.

2.  The applicant states he was wrongfully discharged due to being falsely charged with a civilian conviction and he feels he should be eligible for veteran's benefits.

3.  The applicant provides no additional evidence.

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's records show he was born on 3 November 1964 and he enlisted in the Regular Army at 18 years, 9 months, and 9 days of age on          11 August 1983.  He was assigned to Fort Wainwright, AK. 

3.  On or about 3 September 1984, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, the applicant knowingly, and unlawfully attempted to engage in sexual penetration with a person 13 years of age and at least three years younger than he was.

4.  On 22 March 1985, the applicant and his counsel appeared before the Superior Court for the State of Alaska, Fourth Judicial District.  It was adjudged the applicant was convicted upon his plea of nolo contendere to the offense of attempted sexual abuse of a minor in the second degree.

5.  On 1 April 1985, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 13 December 1984 and 24 January 1985.

6.  On 9 May 1985, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Enlisted Personnel Separations) for violation of one count of Article 112a, UCMJ and a civil court conviction for the offense of attempted sexual abuse of a minor in the second degree.  

7.  On 13 May 1985, the applicant acknowledged receipt of the separation notification.  He consulted with counsel and he was advised of the basis for the contemplated separation due to conviction by civil court, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an under other than honorable conditions discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and appearance before a board of officers.  He waived representation by counsel and he elected not to submit a statement on his own behalf.  

8.  On 15 July 1985, the applicant's intermediate commander recommended approval due to the fact the applicant had been convicted by a civil court for a serious crime and was sentenced to probation for 18 months.

9.  On 6 September 1985, the separation authority approved the applicant's discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct by reason of civil conviction and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 13 September 1985, the applicant was discharged from active duty.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200 with an under other than honorable conditions characterization of service.  He completed 2 years, 1 month, and 3 days of active service with no time lost.

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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.  

	a.  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. 

	b.  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 evidence of record shows the applicant was convicted by a civilian court of attempted sexual abuse of a minor in the second degree.  Further, he also accepted an Article 15 for using marijuana.  Accordingly, his chain of command initiated separation action against him and he was notified.  


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 applicant was over 19 years of age when he committed his offense.  There is no evidence that indicates the applicant was falsely charged and convicted.

4.  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.  The applicant's actions brought discredit to the Army and the Nation. 

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

6.  The reason for the applicant's discharge and the characterization of service were both proper and equitable.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140007461



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ABCMR Record of Proceedings (cont)                                         AR20140007461



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