ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    26 April 2019

	DOCKET NUMBER:  AR20170018996


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 September 1996

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states at the time of his discharge, he was told that after 6 months his discharge could be upgraded due to his good accomplishments and record of service.

3.  The applicant enlisted in the Regular Army on 17 June 1992 and reenlisted on 25 January 1995.

4.  In May 1996, the applicant was party to an investigation for inappropriate sexual relations with a minor (14 year old) child of a fellow Soldier.  The investigation was initiated when the girl's father was made aware she had become pregnant.  The applicant admitted to committing the offense of adultery and consensual sexual intercourse with a minor.  

5.  Court-martial charges were preferred on 19 August 1996 for violations of the Uniform Code of Military Justice (UCMJ), Article 120, carnal knowledge, and Article 134 for wrongfully having sexual intercourse with a woman not his wife and making a false official statement.

6.  The applicant consulted with legal counsel on 10 September 1996.

	a.  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, and the procedures and rights that were available to him.  

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He was advised he could submit any statements he desired in his own behalf.  His request for discharge does not indicate he submitted a statement.

7.  The appropriate authority approved the applicant's request for discharge on 23 September 1996, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged UOTHC.

8.  The applicant was discharged on 28 September 1996.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and his service characterization was UOTHC.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1. 

9.  The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial.

10.  The Army Discharge Review Board denied the applicant's request for an upgrade on 12 June 2007.

11.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrades, the Board determined that relief was not warranted.  Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case lack a justifiable basis for correction of the records of the individual concerned.

	 
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.


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

ABCMR Record of Proceedings (cont)	 AR20170018996
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