BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090007346 


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 2003 bad conduct discharge be upgraded.  

2.  The applicant states he would like to provide a better living for his family and be able to apply for better jobs without repercussions.

3.  The applicant provides no additional evidence 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.  Records available to the Board indicate the applicant entered active duty as a Regular Army Soldier on 1 September 1981 and served continuously via a series of reenlistments.  By August 1992 he had been promoted to pay grade E-6.  In 1996 he successfully completed the Army’s Drill Sergeant Course at Fort Jackson, South Carolina and was subsequently assigned to drill sergeant duties at Fort Jackson.

3.  In January 1998 the applicant was tried and found guilty by a general court-martial of wrongfully engaging in an illegal association with a female Soldier-in-training (a private), by engaging in personal/sexual conversations, kissing, and engaging in sexual intercourse, such conduct not required to accomplish the training mission (Charge I); making and signing an official statement in which he denied having physical contact with the female Soldier, denied going inside the female Soldier’s tent, denied having sexual intercourse with her, denied kissing her, the denial was totally false, and was then known to be so false (Charge II); wrongfully have sexual intercourse with a woman not his wife and committing an indecent assault upon the female Soldier, by kissing her with intent to gratify his lust and sexual desires (Charge IV).  He was found not guilty of rape.

4.  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.  The convening authority approved the sentence.  

5.  The applicant was confined at the U.S. Army Correctional Activity at Fort Knox, Kentucky, until 23 June 1998 until he was placed on excess leave pending disposition of appellate review.  

6.  On 23 August 2002 the United States Army Court of Criminal Appeals considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the adjudged sentence was affirmed.

7.  On 19 March 2003, Headquarters, United States Army Armor Center and Fort Knox, published General Court-Martial Order Number 83 indicating that the applicant’s sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement for 6 months, and reduction to private/E-1, as promulgated in General Court-Martial Order Number 13 was finally affirmed.  The Order further indicated that Article 71(c) having been complied with, the bad conduct discharge would be executed and that that portion of the sentence pertaining to confinement had been served.
8.  Accordingly, on 26 June 2003, the applicant was discharged from the Army with a bad conduct discharge in the rank of private/E-1 pursuant to the sentence of a general court-martial.  He completed 21 years, 4 months, and 26 days of creditable active service.

9.  Records available to the Board indicate the applicant’s personal decorations included five awards of the Army Good Conduct Medal, three Army Commendation Medals, and five Army Achievement Medals.  He had served tours of duty in Somalia, Haiti, Germany, Korea, and Hawaii prior to being assigned duties as a drill sergeant.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 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.

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.

12.  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.

13.  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.





DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s desire to provide for his family and secure better employment is understandable; however, it is not sufficient to mitigate the offenses committed during his military service which resulted in his conviction by a general court martial.  

3.  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.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  In spite of the applicant’s personal decorations, years of otherwise commendable service, and various tours of duty, the seriousness of his offenses and 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 the applicant's bad conduct discharge.

5.  In view of the foregoing, there is no basis for granting 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)                                         AR20090007346





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ABCMR Record of Proceedings (cont)                                         AR20090007346



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