IN THE CASE OF:	  

		BOARD DATE:	      1 OCTOBER 2009

		DOCKET NUMBER:  AR20090007893 


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, upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states, in effect, that he is in the process of applying for medical benefits.

3.  The applicant provides, in support of his request, a copy of the Honorable Discharge Certificate he received when he was discharged for the purpose of immediate reenlistment on 25 May 1993; and Headquarters, 24th Infantry Division, Fort Stewart, GA, Permanent Orders 144-104, dated 20 August 1993 which awarded him the Army Good Conduct Medal (first award).

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 that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 2 October 1990.  He was discharged from the USAR DEP on 21 October 1990 and on 22 October 1990, he enlisted in the Regular Army (RA).  He completed his basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).  The applicant successfully completed the Water Treatment Specialist Course in April 1993 and he was subsequently awarded MOS 77W (Water Treatment Specialist).  The applicant held this MOS as his primary MOS and MOS 75B as his secondary MOS upon his discharge from the Army.

3.  On 25 May 1993, the applicant was honorably discharged for the purpose of immediate reenlistment in the RA.  The applicant reenlisted on 26 May 1993.

4.  On 20 August 1993, Permanent Orders 144-104 were published awarding the applicant the Army Good Conduct Medal for exemplary service during the period 22 October 1990 to 21 October 1993.

5.  On 1 September 1994, the applicant departed his unit at Fort Stewart, GA, en route to Korea.  On arrival in Korea, he was assigned to the 305th Quartermaster Company.

6.  The applicant's records document the highest rank/grade he held on active duty was sergeant (SGT)/E-5.  The record also shows he achieved this rank on 1 May 1993.  The applicant's records document no acts of valor or significant achievement

7.  On 29 June 1995, the applicant was tried and convicted by a general court-martial of attempting to commit sodomy by force and without consent on 23 March 1995; breaking and entering, in the nighttime, the barracks room of another Soldier on about 23 March 1995; and committing an indecent assault upon a female Soldier on about 23 March 1995.  The applicant was sentenced to be confined at hard labor for 2 years, to be discharged from the service with a bad conduct discharge, and to be reduced to the rank/grade of private (PV1)/E-1.  The sentence was adjudged on 29 June 1995.  The sentence was approved and ordered executed, but that part of the sentence extending to confinement in excess of 20 months was suspended for six months at which time unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.

8.  All documentary evidence pertinent to review of the applicant's court-martial and bad conduct discharge is not available in the applicant's service personnel record; however, on 30 April 1996 General Court-martial Order 22 was published 
by Headquarters, I Corps, For Lewis, WA, announcing that the sentence, as modified and approved, had been affirmed.  Article 71(c) having been complied with, the bad conduct discharge was duly ordered executed.

9.  On 1 July 1996, the applicant was discharged from the Army with a bad conduct discharge in the rank/grade of PV1/E-1, pursuant to the sentence of a general court-martial.  He had completed 4 years, 8 months, and 2 days of active Federal service with the period 29 June 1995 through 30 June 1996 identified as time lost due to confinement.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been duly ordered executed.

11.  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.

12.  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 separation specifically allows such characterization.

13.  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.  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 evidence of record shows the applicant received a general court-martial for breaking and entering into the room of another Soldier, committing sodomy by force and without consent, and committing an indecent assault upon a female Soldier.  The applicant was convicted of these offenses and he was sentenced to a bad conduct discharge.  The evidence shows his conviction and discharge were effected in accordance with applicable law and regulation.

3.  The applicant's sentence which was adjudged, modified, and approved was reviewed by a Court of Military Review and it was affirmed.  Article 71(c) having been complied with, the bad conduct discharge was ordered executed and the applicant was discharged accordingly.

4.  Given the gravity of the offenses that resulted in his general court-martial conviction and BCD, there is an insufficient evidentiary basis to support clemency in this case.  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.

5.  It is apparent, from the applicant's statement he is applying for medical benefits; however, the Board does not grant upgrades of discharges for the purpose of qualifying applicants for medical and/or any other of the available benefits administered by the Department of Veterans Affairs and other Federal and State Agencies.

6.  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 undistinguished record of service 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.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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.



      _________XXX_____________
               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)                                         AR20090007893



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ABCMR Record of Proceedings (cont)                                         AR20090007893



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