IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100017080 


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 bad conduct discharge (BCD) be upgraded.

2.  The applicant states he had many accomplishments in the Army and received two honorable discharges.  He believes he deserves an upgraded discharge based on his two honorable periods of service.

3.  The applicant does not provide any additional documentation.

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's military records show he enlisted in the Regular Army on 15 September 1975, was awarded the military occupational specialty of combat signaler, served three tours of duty in Germany, and was promoted to pay grade E-5.  The applicant immediately reenlisted on 16 November 1978 and 31 August 1981.

3.  On 2 February 1989, the applicant was found guilty by a general court-martial of the following:

	a.  on 15 August 1988, committing an indecent act with a female under 16 years of age, not his wife, and

	b.  on 15 August 1988, wrongfully and unlawfully making under lawful oath a false statement, which statement he did not then believe to be true.

4.  The applicant was sentenced to a BCD, confinement for 30 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.

5.  The court-martial's sentence was approved, in part, and ordered executed with the exception of the discharge.  The convening authority reduced the forfeiture to $349.00 per month for 30 months.

6.  On 30 March 1990, the U.S. Army Court of Military Review approved the applicant's court-martial finding of guilty and the sentence.

7.  On 14 September 1990, the applicant's BCD was ordered to be executed.

8.  On 19 October 1990, the applicant was issued a BCD accordingly.  He had 13 years, 4 months, and 1 day of creditable active service.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did, in fact, honorably complete two enlistments prior to being convicted by a court-martial.  These discharges have been considered.

2.  It is apparent that the court and approving authority determined the applicant's prior honorable service was not sufficiently mitigating to warrant a sentence lacking a punitive discharge.

3.  The applicant provides no evidence of error or injustice..  

4.  The gravity of the applicant's offense warranted a BCD.

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 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)                                         AR20100017080



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ABCMR Record of Proceedings (cont)                                         AR20100017080



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