IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008 

	DOCKET NUMBER:  AR20080000377 


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, in effect, that his court-martial conviction be expunged from his record and his bad conduct discharge be upgraded.  He also requests that if the Board is unable to support his request that he be referred to an agency that can help him.

2.  The applicant states, in effect, that it has been 17 years since he was found guilty by a General Court-Martial of kidnapping, indecent assault, assault with intent to commit rape, and false swearing.  The applicant contends that he has had no convictions since then and strongly feels that enough time has elapsed to request that his record be expunged of all convictions and an upgrade of his discharge to that of honorable.

3.  The applicant provides a self-authored statement outlining his contentions, dated 23 January 2008, in support of his application.

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 records show that he enlisted in the Regular Army on 14 October 1982.  He completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 31K (Combat Signaler).  The highest rank and grade the applicant held was sergeant/pay grade E-5.

3.  The applicant's military records show he received the Army Achievement Medal (3rd Award), the Army Good Conduct Medal (2nd Award), the Non-Commissioned Officer Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, for qualifying with the M-16 Rifle, and Hand Grenade Bar with 1st Class Badge.

4.  A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a psychiatric evaluation by the Chief, Physical Exam Center at Irwin Army Community Hospital, Fort Riley, Kansas.  The examining medical officer found that the applicant's behavior was normal, he was fully alert and fully oriented.  His mood and/or affect was unremarkable through a clear thinking process, normal thought content, and good memory.  The examining medical officer found that the applicant had the mental capacity to understand and participate in board proceedings.

5.  A Department of the Army Report of Result of Trial from the Office of the Staff Judge Advocate, Headquarters, V Corps, dated 24 May 1990, which is a summary of the offenses, pleas, and findings, shows the applicant pled not guilty to kidnapping, indecent assault (two specifications), assault with intent to commit rape, and false swearing.  This report further shows the applicant was found guilty of all charges, except that of one specification of indecent assault, but he was found guilty of the lesser included offense of assault.

6.  Department of the Army Headquarters, V Corps, General Court-Martial Order Number 36, dated 10 August 1990, found the applicant guilty of the following specifications:  kidnapping, indecent assault, assault with intent to commit rape, assault, and false swearing.  On 24 May 1990, the Court sentenced the applicant to a forfeiture of all pay and allowances, reduction to the rank of private/pay grade E-1, confinement for 2 years, and a bad conduct discharge.



7.  On 24 May 1991, the United States Army Court of Military Review affirmed the findings of guilty, and the sentence as approved by the convening authority.  On 4 September 1991, the Court of Military Appeals denied the applicant's petition for a grant of review.

8.  General Court-Martial Order Number 388, dated 11 October 1991, shows the unexecuted portion of the sentence to confinement at hard labor was remitted pending appellate review.  

9.  A DA Form 3082 (Statement of Medical Condition), dated 11 October 1991, shows the applicant underwent a separation medical examination prior to separation.  

10.  Department of the Army, Headquarters, United States Army Correctional Brigade, Fort Riley, Kansas, General Court-Martial Order Number 395, dated 17 October 1991, announced the applicant's sentence having been affirmed and the provisions of Article 71c, Uniform Code of Military Justice, had been complied with, the bad conduct discharge would be executed.  Further, that portion of the sentence extending to confinement had been served.  

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, Section IV, as a result of court-martial.  His DD Form 214 shows he was issued an RE code of RE-4 and a Separation Program Designator (SPD) of "JJD."  This form further shows the applicant's character of service as bad conduct.  He completed 7 years, 7 months, and 11 days of active military service with 295 days of lost time due to being in confinement. 

12.  The applicant contends in his self-authored statement that the events leading up to and surrounding his conviction should have been a German civilian matter, since the incident took place off base.  The applicant further contends that had the German authorities investigated the matter, he would not have been charged with a crime, let alone convicted of one.  The applicant alleges that none of his commanding officers approved of his court-martial.  The applicant further alleges his company commander told him and his wife that none of his commanders found that any crime had been committed and that they were not signing off on his court-martial.  

13.  The applicant adds that it was brought to his attention the Criminal Investigation Division (CID) went to an outside general in Frankfurt to sign off on his court-martial.  The applicant continues that he was never afforded an opportunity to initiate his thoughts for appeal of the conviction but was only informed that his appeal was denied.  The applicant continues that even though the incident took place 18 years ago, it has caused him difficulty in his civilian life. In summary, the applicant is requesting that his general court-martial conviction be overturned or expunged due to the above factors and the number of years that have passed since his conviction.

14.  The applicant's record does not contain documentary evidence which shows he was led to believe that after his separation from the service, if he had no further disciplinary problems, his discharge would automatically be upgraded. 

15.  Army Regulation 635-200 (Personnel Separations) provides for separation of enlisted personnel with a bad conduct discharge based on an approved sentence of a general court-martial imposing a bad conduct discharge.  

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code "JJD", as shown on the applicant’s DD Form 214, specifies the narrative reason as a result of court-martial, "other and that the authority for discharge under this SPD is “AR 635-200, paragraph 3-11."  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), in effect at the time, established RE code 4 as the proper reentry code to assign to Soldiers discharged for this reason.

17.  Pertinent Army regulations provide that, prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  Paragraph 3-6 also states that RE codes are not upgraded unless they are administratively incorrect when originally issued.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

18.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.
19.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on the time that has elapsed since his discharge was carefully considered and determined to be without merit.  

2.  The applicant's record shows that he was tried and convicted by a general court-martial for kidnapping, indecent assault, assault with intent to commit rape, assault, and false swearing on 19 January 1990.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant's entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of a general or an honorable discharge.  

6.  In response to the applicant's argument that the incident in which he was involved was German civilian matter is not accurate.  The Army retains jurisdiction over a Soldier regardless of where he or she is located and where the alleged offenses occurred.  
7.  Further, the general court-martial convening authority was the only commander who held the proper legal authority to decide whether or not to refer general court-martial charges.  As for the general who "signed off on" the applicant’s charges allegedly being outside the chain of command, the applicant is either mistaken or the general was in fact his general-court martial convening authority under the area jurisdiction system used in Germany.  Additionally, two courts of appeal considered the applicant's case and found no errors.  Contrary to the applicant's claim, he did present his personal arguments to the Army Court of Military Review, as indicated in the court's written opinion in his case.  Finally, the applicant's request for expungement of his case is noted.  Specifications for which the applicant was convicted were violent and very serious crimes, clearly commensurate with a bad conduct discharge, and the passage of time by itself does not lessen such offenses.  

8.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

9.  The applicant also contends that his conviction by general court-martial should be automatically upgraded after a number of years of post-service conduct.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

10.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will direct changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

11.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

12.  The applicant has the option of pursuing this matter in Federal Court.

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 that 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)                                         AR20080000377



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ABCMR Record of Proceedings (cont)                                         AR20080000377



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