BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017419 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 BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017419 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. BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017419 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 discharge under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states: a. He was released from incarceration on 6 August 2014. It has been over 4 years since his separation from the service and over 4 years and 9 months since his civil conviction. During his incarceration, he completed several classes to ensure his return to society would be successful. b. Even though Army regulations state the Department of the Army had every right to issue him a discharge UOTHC, he still believes his years of exceptional military service to his country should speak volumes about him. He is now going to stress and will continue to stress the fact that this was a very rare isolated incident that he regrets and continues to pay for every day. 3. The applicant provides a Parole Certificate. 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 15 July 1993 and remained on active duty through continuous reenlistments. He was promoted to staff sergeant effective 1 August 2001. 3. On 28 January 2010 in accordance with his plea, he was convicted by the Superior Court of Richmond County, Georgia, of child molestation and sentenced to 8 years in confinement and 2 years of probation. 4. On 1 March 2010, he was notified of his pending separation for misconduct under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-5, for conviction by a civil court. His unit commander cited his conviction for child molestation as the reason for the recommended action. 5. On 2 March 2010, he consulted with counsel and requested an administrative separation board. 6. On 10 June 2010, the administrative separation board recommended his discharge UOTHC. 7. On 10 August 2010, the separation authority approved the recommendation of the administrative separation board and directed the issuance of a discharge UOTHC. 8. On 25 August 2010, he was discharged UOTHC for misconduct (civil conviction) under the provisions of Army Regulation 635-200, paragraph 14-5. He completed 15 years, 8 months and 5 days of creditable active service with 248 days of lost time. 9. On 1 August 2012, the Army Discharge Review Board denied his request for a discharge upgrade. 10. He was paroled on 6 August 2014. REFERENCES: Army Regulation 635-200 sets forth the basic authority for 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, commission of a serious offense (military or civilian 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 UOTHC is normally appropriate for a Soldier discharged under this chapter. 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 applicant's administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 2. His contentions were carefully considered. However, his record of service during his last enlistment included a civil conviction for child molestation and 248 days of lost time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2