IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080018569 


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 discharge be changed.

2.  The applicant states that he was tried three times and that the first two times were thrown out of court.  He still pleads not guilty.  He further states, "I just want this matter taken off my DD 214 [Certificate of Release or Discharge from Active Duty]."

3.  The applicant does not provide any additional documents in support of his request.

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 military records show that he initially enlisted in the Regular Army on 3 July 1975, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).  He was subsequently awarded MOS 31M (Multichannel Communications Equipment Operator) and MOS 31V (Unit Level Communications Maintainer).  He was discharged on 28 June 1978 for the purpose of immediate reenlistment and reenlisted on the next day.  The highest rank/grade he held during his tenure of service was staff sergeant (SSG)/pay grade E-6.

3.  On 2 September 1986, a general court-martial found the applicant guilty of violation of:

	a.  Article 92 of the Uniform Code of Military Justice (UCMJ) for wrongfully engaging in social fraternization with a female Soldier still in a training status by touching her arm, asking her to socially date him after hours, asking her to go to a motel with him, asking her to meet him in the platoon office, and making other improper sexual comments to her;

	b.  Article 134, UCMJ for committing an indecent assault upon a female Soldier, a person not his wife, by having non-consensual sexual intercourse with intent to gratify his sexual desires;

	c.  a second specification of Article 134, UCMJ for committing an indecent assault upon a female Soldier, a person not his wife, by fondling her breasts with the intent to satisfy his sexual desires;

	d.  a third specification (additional charge) of Article 134, UCMJ, for wrongfully endeavoring to impede an Article 32 investigation and influence the testimony of the female Soldier by promising her a sum of money if she would testify falsely on divers occasions; and

	e.  conspiring to commit an offense under the UCMJ of obstructing justice on divers occasions.

4.  On 2 September 1986, the applicant was adjudged the sentence of a Bad Conduct Discharge (BCD), confinement for three years, forfeiture of $500.00 per month for three years, and reduction to pay grade E-1.  On 23 December 1986, the convening authority approved the sentence and, except for the BCD, ordered the sentence executed.  The applicant was credited with 4 days of confinement against the sentence to confinement.

5.  On 21 December 1987, the United States Army Court of Military Review affirmed the findings of guilty and the sentence, with administrative corrections of the General Court-Martial Order.

6.  On 20 June 1988, the United States Court of Military Appeals denied the applicant's petition for grant of review of his case.

7.  Accordingly, on 21 October 1988, the applicant was given a BCD.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 established policy and procedures for separating members with a dishonorable or BCD; and provides that a Soldier 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 affirmed sentence ordered duly executed.

9.  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.

10.  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.

11.  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 was convicted of five specifications of violation of the UCMJ.  The United States Army Court of Military Review affirmed the court-martial's findings of guilty and the sentence.  

2.  The United States Court of Military Appeals denied the applicant's petition for grant of review of his case.

3.  The record clearly shows that the applicant was convicted by a general court-martial, he was sentenced to a BCD, that sentence was upheld under appellate review, and the BCD was ordered executed.  

4.  The applicant has not raised any matters of equity for the Board to consider.

5.  In view of the foregoing, there is no basis to grant the applicant's request.


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)                                         AR20080018569



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ABCMR Record of Proceedings (cont)                                         AR20080018569



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