IN THE CASE OF:
BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090004465
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 to an honorable discharge.
2. The applicant states, in effect, that he was not convicted of the original charges against him but was convicted of a lesser charge (indecent acts); however, the government witness against him was not credible (honest). Accordingly, he desires to have his BCD upgraded to an honorable discharge.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 29 June 1979 for a period of 3 years, training as a food service specialist and assignment to Korea. He completed his training at Fort Jackson, South Carolina and was transferred to Korea on 21 November 1979.
3. He completed his tour in Korea and was transferred to Fort Jackson for duty as a cook in a basic training company.
4. On 28 December 1981, he reenlisted for a period of 4 years and assignment to Hawaii. He arrived in Hawaii on 2 April 1982.
5. On 6 June 1983, he was convicted by a Summary Court-Martial of the wrongful possession and distribution of marijuana. He was sentenced to confinement at hard labor for 10 days and reduction to the pay grade of E-1.
6. On 23 October 1984, he was convicted by a general court-martial of committing indecent, lewd and lascivious acts. He was sentenced to confinement at hard labor for 6 months and a BCD. He was transferred to Fort Riley, Kansas to serve his confinement.
7. On 25 October 1985, the United States Army Court of Military Review affirmed the findings and sentence approved by the convening authority.
8. On 21 April 1986, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 6 years, 4 months, and 19 days of total active service and had approximately 159 days of lost time due to confinement.
9. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 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.
2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
3. The applicants contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service.
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) AR20090004465
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090004465
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090020929
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his bad conduct discharge (BCD) be upgraded to at least a general discharge. The applicants contentions have been noted; however, he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence to warrant an upgrade of his discharge.
ARMY | BCMR | CY2008 | 20080007013
On 1 September 1977, while still in BCT, he was released from military control by reason of a voided enlistment due to fraudulent enlistment under the provisions of Army Regulation 635-200, chapter 14. However, there is no evidence in the available records to show that the applicants discharge was ever actually accomplished or that his discharge orders and DD Form 214 were ever published. As a result, the Board recommends that all Department of the Army records of the individual concerned...
ARMY | BCMR | CY2009 | 20090007346
Headquarters, United States Army Training Center and Fort Jackson, General General-Martial Order Number 13, dated 10 December 1998, shows that on 24 January 1998 the applicant was sentenced to be reduced to the grade of E-1, to forfeit all pay, and allowances; to be confined for 6 months, and to be discharged from the service with a bad conduct discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable...
ARMY | BCMR | CY2009 | 20090018675
Application for correction of military records (with supporting documents provided, if any). On 20 October 1978, Headquarters, U.S. Army Element, I Corps (ROK [Republic of Korea]/US) Group, Special Court-Martial Order Number 23, approved the sentence and ordered it duly executed, but the execution of that portion adjudging confinement at hard labor in excess of 60 days was suspended until 16 April 1979. There is no evidence the applicant applied to the Army Discharge Review Board within...
ARMY | BCMR | CY2013 | 20130007125
There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. The applicant's contentions have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offense. His conviction and discharge were effected in accordance with applicable law and regulations and the BCD appropriately...
ARMY | BCMR | CY2009 | 20090014301
He also states he was convicted and served his time. There is no evidence in the available records to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. The applicants contentions were considered; however, he has failed to show through evidence submitted with his application or the evidence of record, that his discharge warrants an upgrade.
ARMY | BCMR | CY2010 | 20100013343
He was discharged accordingly on 16 October 1987 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial, with a dishonorable discharge. Army Regulation 635-200, paragraph 3-7b, further provided a general discharge was a separation from the Army under honorable conditions. The evidence of record shows his offenses warranted this punishment.
ARMY | BCMR | CY2010 | 20100026353
The applicant requests that his dishonorable discharge be upgraded to a general discharge. The applicant provides no additional evidence with his application. He completed basic training at Fort Bliss, Texas, and remained at Fort Bliss for advanced individual training (AIT).
ARMY | BCMR | CY2009 | 20090016780
Application for correction of military records (with supporting documents provided, if any). On 19 June 1979, the United States Army Court of Military Review affirmed the findings and sentence in the applicant's case after determining they were correct in law and fact. Headquarters, 7th Infantry Division and Fort Ord, California, SPCM Order Number 96, dated 7 November 1980, shows the applicant's conviction and sentence had been affirmed pursuant to Article 66 of the UCMJ and directed,...
ARMY | BCMR | CY2009 | 20090007893
Application for correction of military records (with supporting documents provided, if any). The applicant requests, in effect, upgrade of his bad conduct discharge to an honorable discharge. The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of his bad conduct discharge to a general, under honorable conditions or to a fully honorable discharge.