IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150011741 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150011741 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150011741 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, an upgrade of his under other than honorable conditions discharge. 2. The applicant states: * at the time of getting this discharge, he was already incarcerated; he had been convicted by civil court around the time the Army discharged him * he is not the same guy he was at the time; he has grown up and improved his life; he continues to make things better * he knew something was wrong with him when he joined the Army but he was too afraid to say anything * he cannot change what happened; however, he can change the way he thinks and become a better person * he was just a young man who wanted to do whatever he wanted to do; he is very sorry for the hurt and pain he caused to so many people 3. The applicant provides: * General Educational Development (GED) Diploma * Multiple certificates of credit, completion, or trade school * Multiple certificates related to sex offenders, alcoholism, narcotics, and substance abuse * Multiple certificates of completion of anger management classes 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 for a 3-year term on 4 October 1974. He held military occupational specialty 11E (Armor Crewman). He was assigned to Fort Meade, MD. 3. On 13 January 1975, he departed his unit in an absent without leave (AWOL) status. He ultimately returned to military control on 15 July 1975. 4. On 21 July 1975, the applicant departed his unit in an AWOL status. He was apprehended by civil authorities in Roanoke, VA on 1 October 1975. 5. On 22 July 1975, his command preferred court-martial charges against him for one specification of AWOL from 13 January to 22 July 1975. 6. On 23 October 1975, court-martial charges were preferred against the applicant for one specification of AWOL from 13 January to 15 July 1975 and a second specification of AWOL from 21 July to 1 October 1975. 7. It appears on 23 October 1975, he submitted a request for discharge in lieu of trial by a court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations). However, it appears while his chain of command was processing his request, new information was received that he had been arrested by civil authorities. He was confined by civil authorities and pending trial for various crimes (rape, sodomy, robbery, and burglary). 8. On 17 December 1975, the applicant was again reported in an AWOL status and on 18 December 1975, he was dropped from the Army rolls as a deserter. He would later be apprehended by civil authorities in Roanoke, VA. 9. On 23 December 1975, agents of the U.S. Army Criminal Investigation Command (CID) conducted an investigation of rape. The investigation revealed that on 8 November 1975 the applicant approached a civilian female at Fort Meade, blindfolded her, forced her into a ditch in the woods, forced her to undress, fondled her body, and threatened her with a knife. When hearing noises, he released her. However, he approached her again, forced her to undress and forced her to have sex with him. 10. On 26 December 1975, at an off-post location in Roanoke, VA, Military Police were notified that the applicant had raped and committed sodomy on a 14-year-old juvenile on 20 December 1975. Additionally, on 23 December 1975, he also raped and committed sodomy and robbed a 32-year old woman. Further investigation revealed he had been confined at Fort Meade Correctional Facility. He had been transported to Walter Reed Army Medical Hospital but escaped on 17 December 1975. He was arrested by civil authorities and confined in Roanoke, VA on 25 December 1975. 11. On 20 May 1977, the Circuit Court of the City of Roanoke convicted the applicant of one count of statutory burglary with intent to commit rape, one count of sodomy, one count of rape, and one count of robbery. The court sentenced him to confinement of 45 to 80 years. 12. On 7 October 1977, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) due to conviction by civil authorities. 13. On 10 October 1977, the applicant acknowledged receipt of the separation action. He was advised of his rights, including the basis for the contemplated separation action due civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a board of officers and appearance before a board of officers and elected to submit a statement in his own behalf. He also indicated that he would appeal his civil conviction. He further acknowledged that he understood: * he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him * as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life 14. On 25 October 1977, the applicant's immediate commander initiated separation action against him citing his civil conviction for rape, sodomy, robbery, and statutory burglary. The immediate commander recommended approval. 15. On 10 November 1977, the applicant waived consideration of his case by a board of officers and appearance before a board of officers and elected not to submit a statement in his own behalf. He also indicated that he would not appeal his civil conviction. He further acknowledged that he understood: * he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him * as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life 16. On 30 November 1977, the separation authority approved the recommendation to discharge the applicant from the Army under the provisions of section IV of AR 635-206 and directed the issuance of a DD Form 794A (Discharge Certificate (Under Other Than Honorable Conditions)) and reduction to the lowest enlisted grade. On 8 December 1977, the applicant was accordingly discharged. 17. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of section IV of AR 635-206 due to being convicted by civil court, and he was issued an Under Other Than Honorable Conditions Discharge Certificate. This form also shows he completed a total of 10 months and 14 days of creditable active service and he had 776 days of time lost. 18. On 5 November 1979, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 19. He provides his GED Diploma; multiple certificates of credit, completion, or trade school; multiple certificates related to sex offenders, alcoholism, narcotics, and substance abuse; and multiple certificates of completion of anger management classes. REFERENCES: 1. AR 635-206, paragraph 24, then in effect, provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, would, as a general rule, be retained in service. If the offense was indicative of an established pattern of frequent difficulty with the civil authorities, the member's military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation would be submitted through the major command headquarters to the Adjutant General. Furthermore, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures for the separation of enlisted personnel. 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: 1. The evidence of record shows the applicant was convicted by civil court for rape, sodomy, robbery, and statutory burglary. His conviction yielded a lengthy confinement sentence. Accordingly, his chain of command initiated separation action against him and he was properly notified. 2. He waived consideration of his case by a board of officers and/or appearance before a board of officers. He further indicated that he did not intend to appeal his civil conviction. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. There is no evidence of error or injustice in the characterization of service he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011741 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011741 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2