RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007  
	DOCKET NUMBER:  AR20070000445 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states, in effect, that he was young at the time and did not know better.  He now has a wife and children and has not been in any serious trouble since then.  Ten years have passed and he wants to put the past behind him.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 December 2002.  The application submitted in this case is dated 
28 December 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 7 May 1977.  He enlisted in the Regular Army 
31 August 1995 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).

4.  On 19 June 1998, the applicant was convicted, contrary to his pleas, by a general court-martial, of sodomy by force and willful kidnapping.  His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of all pay and allowances, confinement for two years and six months, and a BCD.  

5.  The affirmation of the U.S. Army Court of Criminal Appeals (USACCA) is not available.  Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 245, dated 30 October 2002, shows that the USACCA affirmed the finding of guilty and the sentence.



6.  On 23 December 2002, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.  He completed 5 years, 
4 months, and 24 days of creditable active service on his last enlistment with 688 days of lost time due to confinement. 

7.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

8.  Army Regulation 635-200, 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.

9.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service and age factor were considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that these factors are not sufficiently meritorious or mitigating to warrant the relief requested.
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 December 2002; the date of his separation from the Army; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 December 2005.  Although the applicant is requesting in effect a grant of clemency based on good post-service conduct, he has not provided any evidence of post-service achievement or good conduct.  In the absence of such evidence, it is not in the interest of justice to excuse the applicant's failure to timely file in this case within the 3-year statute of limitations.

 BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JCR __  __RMN__  ___DJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__ Mr. Jeffrey C. Redmann __
          CHAIRPERSON




INDEX

CASE ID
AR20070000445
SUFFIX

RECON

DATE BOARDED
9 AUGUST 2007
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.6800.0000
2.

3.

4.

5.

6.