IN THE CASE OF:	

		BOARD DATE:	  	12 November 2008

		DOCKET NUMBER:  AR20080012361 


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 (BCD) be upgraded to honorable and that he be retired for length of service.  

2.  The applicant states, in effect, that an injustice exists in his record based on “prosecutional overreaching and misconduct.”  He states that his conviction by court-martial was unjust because of undue pressure and influence placed on his former spouse regarding her cooperation with the military authorities in the prosecution of this case.  

3.  The applicant provides a letter from his attorney, dated 10 July 2008; his personal statements, dated 10 July 2008; and a letter from his former spouse, dated 24 June 2008.  

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 was inducted into the Army of the United States on 14 February 1968 and was honorably discharged on 19 February 1968 for enlistment in the Regular Army.  He enlisted in the Regular Army on 20 February 1968 and continued to serve on active duty through a series of reenlistments.  His highest grade attained was staff sergeant.  

3.  His service personnel records show that on 12 February 1974 he was convicted by a general court-martial of committing assault upon his wife by cutting her on her neck and back with a dangerous weapon (a pocketknife).  He was sentenced to a forfeiture of $50.00 for 4 months and restriction for 2 months.

4.  On 3 April 1984, the applicant was notified that a Department of the Army Selection Board had determined after a review of his Official Military Personnel file (OMPF) that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the presence in his records of a general court-martial, a letter of removal from the drill sergeant program, and a substandard Noncommmissioned Officer Evaluation Report (NCOER).

5.  The applicant appealed the bar to reenlistment with the support of his chain of command and the bar to reenlistment was removed on 2 January 1985.

6.  On or about 16 September 1987, the applicant's request for retirement was approved.  

7.  On orders dated 26 May 1988, the applicant's retirement orders were revoked.  

8.  On 19 October 1988, pursuant to his pleas, the applicant was convicted by a general court-martial of two specifications of committing carnal knowledge with his stepdaughter, a child under 16 years of age and of taking indecent liberties with another stepdaughter, another child under 16 years of age.  He was sentenced to a BCD, confinement for 5 years, total forfeiture of pay and allowances, and reduction to the pay grade of E-1.

9.  The convening authority approved only so much of the sentence as provided for a BCD, confinement for 5 years, and reduction to the pay grade of E-1.  The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement while awaiting his appellate review and any appeals he chose to submit.  

10.  The Court of Military Review affirmed the findings and sentence of the general court-martial and on 20 November 1989 orders were published directing the discharge portion of the sentence to be executed.  

11.  The applicant was discharged on 15 December 1989 under the provisions of Army Regulation 635-200, paragraph 3-11 as a result of court-martial - other.  He had served 20 years, 5 months, and 16 days of total active service with 432 days of lost time (after expiration of term of service) due to confinement.  

12.  On 6 January 1999, the ABCMR denied the applicant's request that his court-martial be set aside and that he be retired for length of service.  

13.  The applicant provided statements from his former spouse.  The former spouse stated that the applicant retired in February 1988 after 20 years in the U.S. Army.  During the same month, the applicant's stepdaughter became pregnant at 16 years old and named him as the father.  After her daughter was taken to the hospital at Fort Gordon, Georgia, the doctor called the Criminal Investigation Division (CID).  She stated that someone at the Army Judge Adjutant General's (JAG) office called her every day.  She was referred to the Department of Family and Children Services and was told that they could take her children from her if she did not cooperate with the Army-appointed attorney.  The Family and Children Services later came back to her house and told her that they would be taking her children from her because she did not cooperate with the military attorney.  She stated that the Army released the applicant on parole from Fort Leavenworth, Kansas after three years of confinement but he was not released back to their residence in Augusta, Georgia.  She went to Fort Leavenworth, Kansas to show her support for the applicant but the Army would not acknowledge her support at all.  

14.  The applicant also provided statements from his attorney.  Counsel stated that the applicant's claim for correction involved a court-martial conviction based upon sexual misconduct with his stepdaughter that occurred at a time prior to his retirement from the U.S. Army.  The applicant was court-martialed and received a three-year sentence and received an other than honorable discharge for that period of service.  Counsel stated that the statement from the applicant's former spouse was tendered to establish "overreaching" by the prosecution.  He also stated that his client [the applicant] was never tried by a civilian court even though the offense occurred off-post and had no connection with the military.  Counsel further stated that the former spouse's statements clearly indicated that pressure was exerted by the prosecutor.  

15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  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.

19.  Title 10, United States Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30 years for an active Federal service retirement may, upon his request, be retired.  

DISCUSSION AND CONCLUSIONS:

1.  The 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.  The applicant's contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial and appellate process, and furnish no basis for recharacterization of the discharge.

2.  The applicant’s record of service included two general court-martial convictions, one for committing assault upon his wife and one court-martial for committing carnal knowledge with his stepdaughter and taking indecent liberties with another stepdaughter.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  Retirement for an enlisted Soldier with less than 30 years active Federal service is not a right.  Given the seriousness of the misconduct for which the applicant was convicted, reinstating his retirement would not be appropriate.

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.




      _______ _xxx   _______   ___
               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)                                         AR20080012361





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ABCMR Record of Proceedings (cont)                                         AR20080012361



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