IN THE CASE OF:	  

		BOARD DATE:	    21 May 2015

		DOCKET NUMBER:  AR20140017061 


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 characterization of service.

2.  The applicant states no reason was given as to why he should not receive an honorable characterization of service, and he was never told why he received an under honorable conditions (general) characterization of service.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a self-authored statement.

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 25 July 1973 and held military occupational specialty 16E (HAWK Fire Control Crewmember).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His record contains two DA Forms 2323 (Sworn Statement), dated 17 and 
19 June 1975.  

a. The form dated 17 June 1975 contains a statement from the applicant
wherein he admitted to, in effect, taking immoral and indecent liberties with a 
5-year old female, by placing his hand on her private parts, with intent to gratify his lust; and committing lewd and lascivious acts with the body of a 5-year old female, by placing her hand upon his private parts, with the intent to arouse sexual desire.

	b.  The form dated 19 June 1975 contains a statement from the victim's mother, wherein she corroborated the applicant's sworn statement with regard to the indecent liberties he took with her 5-year old daughter.  

4.  His record contains a DD Form 458 (Charge Sheet) that shows court-martial charges were preferred against him for one specification of taking immoral and indecent liberties with a female under 16 years of age, by placing his hand on her private parts, with intent to gratify his lust.  He was also charged with one specification of committing lewd and lecivious acts with the body of a female under the age of 16, by placing her hand upon his private parts, with the intent to arouse sexual desire.

5.  On 23 July 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he acknowledged that he was guilty of all charges and 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.  In this request for discharge he acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  


6.  On 30 July 1975, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with a General Discharge Certificate.  Accordingly, he was discharged on 12 August 1975.

7.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 12 August 1975 with an under honorable conditions (general) characterization of service.  

8.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his characterization of service within that Boards 15 year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. 
Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

10.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel; he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
2.  His record shows he admitted to and was charged with inappropriately touching a 5 year old child on her private parts and forcing her to touch him on his private parts for his own sexual gratification.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable discharge in this case.

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)                                         AR20140017061



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017061



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1