BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090007323 


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 a fully honorable discharge (HD). 

2.  The applicant states, in effect, that his discharge was too harsh due to the atmosphere of the military at the time.  He indicates he was convicted of disobeying a written order, adultery and having a relationship with a married student.  He states he was unaware the female Soldier was married. 

3.  The applicant provides the following documents in support of his request: a
DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), DD Form 214 (Certificate of Release or Discharge from Active Duty), award certificates, certificate of appreciation, certificates of achievement, certificates of training, Real Estate Broker's Licenses, Texas Comptroller of Public Accounts letter; and an Internet document.

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 enlisted in the Regular Army and entered active duty on 26 February 1986.  He was trained in, awarded, and served in military occupational specialty (MOS) 16T (Patriot Missile Crewmember).

3.  On 1 November 1993, he was promoted to staff sergeant (SSG)/E-6, which is the highest rank he achieved while serving on active duty.  He earned the Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal (3rd Award), National Defense Service Medal, Kuwait Liberation Medal - Saudi Arabia, Southwest Asia Service Medal with 3 bronze service stars, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  On 17 July 1997, a General Court-Martial (GCM) found the applicant guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:  Article 92 (4 specifications) by violating a lawful general order between 1 August and 30 September 1994, on 4 September 1996, and twice on 25 September 1996; and Article 134 (2 specifications) by committing adultery between 1 August and 30 September 1994, and between 
4 September and 15 October 1996.  The resulting sentence was a reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for 
4 months, and a BCD.

5.  Headquarters, United States Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, GCM Order Number 2, dated 6 February 1998, show the GCM convening authority approved the applicant's sentence and directed that, except for the BCD, the sentence be duly executed.

6.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 50, dated 13 July 2000, provided that Article 71(c) of the UCMJ having been complied with, the BCD would be duly executed. 

7.  On 5 January 2001, the applicant was separated, under the provisions of Chapter 3, Section IV, Army Regulation 635-200, by reason of court-martial with a BCD in the rank of PV/E-1.  The DD Form 214 he was issued shows he completed a total of 14 years, 7 months, and 4 days of creditable active military service and he had accrued 94 days of time lost due to being in confinement.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates, in pertinent part, 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 before the BCD portion of the sentence is 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his BCD should be upgraded to an HD because his punishment was harsh due to the atmosphere of the military at the time was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge and he does not deny committing the offenses for which he was convicted.  Given the gravity of the offenses that resulted in his GCM conviction and the issuance of the BCD, there is an insufficient evidentiary basis to support clemency 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)                                         AR20090007323



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ABCMR Record of Proceedings (cont)                                         AR20090007323



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