IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20080017569 


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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states that he is no longer the man he was when he received his BCD and is asking that his discharge be upgraded to reflect the years of service he gave to his country, rather than the time he lost as a result of his poor judgment.  He continues to state, in effect, that he wishes to have his Army record corrected to show a favorable reflection of his service and dedication to his country and that he held himself to the highest professional standard.  He also states that his dedication to the military was never in question but personal and family issues led to his court-martial.  While he was incarcerated at Fort Leavenworth, he received extensive mental health counseling and support group therapy, which lead to him having a better understanding of himself and his family, these issues have resolved, and he has repaired the relationships with his family.  He states he is an active part of their family lives.  He concludes by stating that he is a productive member of society, is employed, active in his church, and is engaged in community activities.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows he initially enlisted in the Regular Army on 
21 December 1971 and reenlisted in the Regular Army on 27 January 1977.  

3.  The applicant’s record contains a copy of Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, CA, General Court-Martial (GCM) Order Number 31, dated 10 June 1992, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 102, Uniform Code of Military Justice (UCMJ), with two specifications:  
	
		(1)  Specification I:  Rape between 24 November 1990 and 5 September 1991.  The applicant entered a plea of not guilty and was found not guilty.  

		(2)  Specification II:  Carnal Knowledge between 1 January 1990 and 
24 November 1990.  The applicant did not enter a plea and the military judge dismissed the specifications.

	b.  Charge II, Article 134, UCMJ, with three specifications:  

		(1)  Specification I:  Indecent acts with a child under the age of 16 years between 1 January 1990 and 5 September 1991.  The applicant did not enter a plea and the military judge dismissed the specifications.

		(2)  Specification II:  Indecent acts with a child under the age of 16 years between 1 January 1988 and 31 January 1988.  The applicant pled guilty and was found guilty.

		(3)  Specification III:  Indecent acts with a child under the age of 16 years between 1 January 1985 and 31 January 1989.  The applicant pled guilty and was found guilty.

	c.  Additional Charge I, Article 134, UCMJ, with the two specifications: 
		(1)  Indecent acts between 1 January 1991 and 5 September 1991.  The applicant pled guilty and was found guilty.

		(2)  Indecent acts between 1 January 1991 and 5 September 1991.  The applicant pled guilty and was found guilty.

	d.  Additional Charge II, Article 134, UCMJ, with the three specifications: 

		(1)  Indecent acts between 24 November 1990 and 5 September 1991.  The applicant pled guilty and was found guilty.

		(2)  Indecent acts with a child under the age of 16 between 4 March 1987 and 1 June 1990.  The applicant pled guilty and was found guilty.

		(3)  Indecent acts with a child under the age of 16 between 4 March 1990 and 1 June 1990.  The applicant pled guilty and was found guilty.

4.  On 27 March 1992, sentence was adjudged.  The applicant was sentenced to be confined for a period of 4 years, to be discharged from the U.S. Army with a BCD, and to be reduced to private (PV1)/E-1.  (No previous convictions considered.)

5.  The GCM convening authority ordered the sentence, except for the BCD, executed; directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review; and ordered the applicant be confined pending completion of the appellate review.

6.  On 9 March 1993, the U.S. Army Court of Military Review affirmed the findings and sentence in this case.

7.  The applicant’s record contains a copy of U.S. Disciplinary Barracks, U. S. Army Combined Armed Command and Fort Leavenworth, Fort Leavenworth, Kansas, GCM Order Number 345, dated 14 October 1993.  This document shows, in pertinent part, that the applicant's sentence was affirmed.  This document also shows that the provisions of Article 71(c) having been complied with and the applicant having served that portion of the sentence pertaining to confinement, the BCD was ordered duly executed.

8.  The applicant's DD Form 214 shows that he was discharged on 26 November 1993 under the provisions of chapter 3 of Army Regulation 635-200 by reason of court-martial, with a reentry eligibility (RE) code of "4."  This document also shows the applicant's character of service as bad conduct.  At the time of his discharge the applicant had completed 20 years, 3 months, and 6 days of net active service.  This document further shows the applicant had time lost under Title 10, U.S. Code, section 972, from 27 March 1992 to 26 November 1993.

9.  The applicant provides six character reference statements from his daughter, clergy, employers, and friends.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states that Soldiers will be given a BCD 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.

11.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

12.  Court-martial convictions stand as adjudged or 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's contends that his BCD should be upgraded.  The character references that were submitted by the applicant were carefully considered.  However, they do not provide a sufficiently mitigating basis on which to grant the relief requested.

2.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.  The applicant’s service was not sufficiently meritorious to warrant granting clemency. 

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's record of service, the seriousness of the offenses for which he was convicted and which occurred over a number of years, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  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.  

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)                                         AR20080017569



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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