IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150002285 


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 his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he served over 27 months of active service.  His discharge was based on a civil conviction which is now over 35 years old.

3.  The applicant provides no additional evidence in support of his application.

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.  On 13 April 1976, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3.  On 16 September 1976, he was assigned to the Combat Support Company, 1st Battalion, 325th Infantry at Fort Bragg, NC.

4.  On 11 April 1977, he received nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to pay grade E-2, a forfeiture of $50.00 pay for 1 month, and 7 days of extra duty.  He appealed his punishment but did not submit matters for consideration by the next authority.  On 27 April 1977, his appeal was denied.

5.  On 31 August 1977, he was tried before a special court-martial.  He pled not guilty and was found guilty of:

* failing to go to appointed place of duty on 27 May 1977
* being absent without leave (AWOL) from on or about 1 to 8 August 1977 
* willfully disobeying a lawful order from a commissioned officer
* assaulting a staff sergeant (SSG) by striking him on the forehead with his fist

6.  He was sentenced to:

* confinement at hard labor for 90 days
* reduction to the lowest enlisted grade
* a forfeiture of $100.00 pay for 3 months

7.  On 15 September 1977, the convening authority approved the sentence and ordered it executed.

8.  On 9 November 1977, the unexecuted portion of his sentence was suspended until 23 January 1978, at which time, unless sooner vacated, the suspended portion of the sentence was to be remitted without further action.  

9.  On 1 December 1977, he was assigned to C Troop, 2nd Squadron, 
1st Cavalry, Fort Hood, TX.

10.  On 5 December 1978, he was apprehended by the Criminal Investigation Command and held in pre-trial confinement at the Killen Police Department, Killeen TX.  His pending charges were aggravated kidnapping and aggravated rape.

11.  On 12 February 1979, he was convicted in the District Court of Bell County, 27th Judicial District, Texas of aggravated rape.  He was sentenced to confinement in the Texas Department of Corrections for a term of not less than 
5 years nor more than life.
12.  In a letter, dated 22 August 1979, a military attorney advised the applicant he was being considered for discharge from the Army because he was convicted on 12 February 1979 by the District Court, Bell County for aggravated rape and was sentenced to life in the Texas Department of Corrections.  The military attorney advised the applicant:

* that normally, in such cases, an under other than honorable conditions discharge was issued
* an honorable or general discharge could be given if he had been awarded a personal decoration
* an under other than honorable conditions discharge could affect him the rest of his life.  He would lose certain benefits that he would otherwise be entitled to receive
* he could request a board of officers to decide his case and be represented by military counsel or a civilian attorney at his own expense to represent him before the board
* he could ask that witnesses, if reasonably available, testify before the board in his behalf
* he may waive all of these rights and let the commanding general decide whether to discharge him and the type of discharge certificate to be issued to him

13.  On 22 August 1979, he acknowledged he had been advised by counsel of the basis for contemplated action to separate him due to his civil conviction.  He waived consideration of his case by a board of officers.  He indicated he was not submitting statements in his own behalf.  He requested representation by his appointed counsel.  He indicated that he did intend to appeal his conviction for aggravated rape and sentence of life in the Texas Department of Corrections.

14.  On 11 January 1980, the Commanding General, 2nd Armored Division, Fort Hood, TX approved the recommendation for discharge and directed the issuance of an Under Other Than Honorable Conditions Certificate.  Execution of the action was suspended until action was taken upon appeal filed by the applicant.

15.  On 31 March 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - conviction by civil court.  He completed 2 years, 4 months, and 16 days of net active service that was characterized as under other than honorable conditions.  He had 317 days of time lost and 894 days lost subsequent to his expiration term of service (ETS) date.

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

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

	a.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

	b.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action was taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  He was convicted and sentenced to a term of not less than 5 years nor more than life imprisonment by a civil court for aggravated rape.  Therefore, it was appropriate to process him for separation due to conviction by a civil court under the provisions of Army Regulation 635-200, chapter 14.

2.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge and the reason for discharge were appropriate considering all the facts of the case.

3.  He received NJP on one occasion.  He was convicted by a special court-martial for failing to go his appointed place of duty, being AWOL, disobeying a lawful order from a commissioned officer, and assaulting a SSG.  He had 317 days of lost time and 894 days lost subsequent to his ETS date.  The charges he was convicted of in civil court were of such a serious nature that he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct as a Soldier was unsatisfactory.

4.  There is an insufficient basis upon which to grant the 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)                                         AR20150002285



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ABCMR Record of Proceedings (cont)                                         AR20150002285



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