ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180010268


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he is requesting an upgrade in an effort to obtain Veteran Administration (VA) benefits, apply for VA loans and join the organization, American Veterans.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 30 November 1988.

	b.  On 24 October 1990, he was arrested by civil authorities for sodomy of a child.

	c.  On 18 December 1990, he was convicted of aggravated criminal sodomy and the court sentenced to 5 to 20 years confinement in Geary County, Kansas.

	d.  His immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-5(a) (2), in effect at the time, due to misconduct, conviction by civil court.

	e.  The applicant acknowledged receipt of the commander’s intent to separate him.  Subsequently, he consulted with legal counsel and submitted a statement on his own behalf.

	f.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, conviction by civil court.

	g.  On 24 August 1992, the board convened to determine whether the member should be separated for misconduct, conviction by civil court.  The administrative board considered all the evidence and found the applicant to be discharged from military service for misconduct.  The board recommended issuance of a under other than honorable conditions discharge certificate.

	h.  On 4 September 1992, the separation authority reviewed the findings and recommendations from the board and approved the applicant's discharge for misconduct, conviction by civil court.  He directed an under other than honorable conditions discharge and reduction to the lowest grade.

	i.  The applicant was discharged on 23 May 1995.  His DD Form 214 shows he was discharged for misconduct with an under other than honorable conditions characterization of service.  He completed 1 year, 10 months and 24 days of net active service with1672 days of lost time.

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation (AR 635-200), an individual will be considered for discharge when convicted by civil court.  An under other than honorable discharge certificate is normally appropriate unless the discharge authority directs an honorable or general discharge if such is merited by the member’s overall record.

6.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the serious, criminal nature of the offense which resulted in the applicant’s separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.


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 are insufficient as a 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 Army Board for Correction of Military Records (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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate.

	b.  Paragraph 3-7b (General Discharge) states 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.

	c.  Chapter 14-5 of this regulation provides procedures for separating personnel for misconduct due to conviction by civil court and sentence for confinement for 6 months or more.  An under other than honorable discharge certificate is normally appropriate unless the discharge authority directs an honorable or general discharge if such is merited by the member’s overall record.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180010268


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