IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080000790 


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 bad conduct discharge be upgraded to honorable.

2.  The applicant states, in effect, that he has suffered from the affects of untreated post traumatic stress disorder (PTSD) since 1984.  He further contends that his PTSD was responsible for his misconduct and that his bad conduct discharge should be voided and his previous rank restored.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) and his Department of Veterans Affairs rating decision effective 5 April 2006.

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.  On 5 August 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 62J (General Construction Equipment Operator).  He served through a series of enlistments and attained the rank of sergeant on 5 July 1984.

3.  On 30 January 1989, charges were preferred under the Uniform Code of Military Justice (UCMJ).   Charge I was for violation of Article 120 (two specifications) for committing the offense of carnal knowledge.   Charge II was for violation of Article 125 (one specification) for sodomy with a child under the age of 16 years.  Charge III was for violation of Article 134 (two specifications) for adultery.  [During the course of the court-martial, the military judge dismissed Charge III and all specifications as being multiplicious with Charge I.] 

4.  On 3 April 1989, before a General Court-Martial, the applicant pled not guilty to all specifications and charges. 

5.  The court found him guilty of all Charges and specifications.  The court sentenced him to a reduction to pay grade E-1, forfeiture of all pay and allowances and a bad conduct discharge.

6.  On 23 May 1989, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence, and except; for the part of the punishment extending to a bad conduct discharge, recommended that it be executed. 

7.  On 6 June 1989, the convening authority approved the sentence except for that part extending to a bad conduct discharge. 

8.  On 24 April 1990, the United States Army of Military Appeals reviewed the entire record, and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

9.  General Court-Martial Order Number 79, United States Army Armor Center and Fort Knox, Kentucky, dated 18 October 1990, provided that the sentence to reduction to pay grade E-1, forfeiture of all pay and allowances, and a bad conduct discharge, adjudged on 5 April 1989, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.



10.  The applicant's DD Form 214 shows that he was discharged on 
13 November 1990 under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a bad conduct characterization of service.  

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant’s contention that his current PTSD condition was the result of a 1984 vehicle accident and that his condition was the direct cause of his misconduct, is not substantiated by any evidence of record.  Furthermore, he has not provided any convincing evidence or argument to support his contention.

3.  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 the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.  

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)                                         AR20080000790





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ABCMR Record of Proceedings (cont)                                         AR20080000790



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