IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090009186 


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 upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge.

2.  The applicant states that he served for 7 years, but made a mistake because of drug and alcohol abuse.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty 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 enlisted in the Regular Army (RA) on 22 September 1972.  He completed training as a combat engineer and he was stationed at Fort Lewis, WA.

3.  On 12 April 1974 a general court martial convicted him, contrary to his pleas, of carnal knowledge of a female under the age of 16 years on or about 
10 September 1973 and the rape of another female on or about 22 October 1973.  The adjudged sentence consisted of forfeiture of all pay and allowances, confinement at hard labor for six years, and a BCD.

4.  The convening authority considered the case, approved the findings and sentence and, except for the discharge which was pending review by the Court of Military Review, ordered the sentence executed.

5.  On 12 December 1974 the Secretary of the Army reduced the confinement to five and one half years.  Additionally, on 21 January 1975, the local general court-martial convening authority suspended the forfeitures in excess of $160 per month until such time as the sentence is ordered into execution with provisions for automatic remission.

6.  The applicant was subsequently paroled on 3 March 1976.

7.  The U. S. Court of Military Appeals set aside the specification of carnal knowledge and remanded the case to the Army Court of Military Review.

8.  The Army Court of Military Review dismissed the specification of carnal knowledge, approved the finding on the rape specification.  It also reassessed the sentence and approved so much of the sentence as provided for confinement for 4 years, total forfeiture of pay, and a BCD.  Further review was denied.  Article 71 of the Uniform Code of Military Justice (UCMJ) having been complied with, the BCD was ordered executed.

9.  The applicant was discharged accordingly on 26 October 1979.

10.  The Manual for Courts-Martial, then in effect, and the edition currently in effect, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), then in effect, and Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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.

12.  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 states that he served for 7 years, but made a mistake because of drug and alcohol abuse.

2.  The available records do not contain and the applicant did not provide any evidence or information relative to substance abuse or his perception of the relevance this factor to his behavior.

3.  By specific provision of the Manual for Courts-Martial drugs and alcohol are not an excuse for any misconduct.  This standard of conduct is not accepted not only by the military but by society as a whole as demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.
 
4.  The applicant was convicted of rape.  That is not a mistake.  It is a heinous crime.

5.  The applicant did not "serve" in the Army for 7 years.  He had served approximately 1 year of active duty service before committing the offenses that ultimately led to his BCD.  The remainder of his active service was spent serving his sentence or on excess leave status pending the appellate review process.

6.  Trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's court-martial conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

7.  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.

8.  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)                                         AR20090009186



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ABCMR Record of Proceedings (cont)                                         AR20090009186



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