IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090009695
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 be upgraded.
2. The applicant states he was told by counsel while serving his sentence that after 2 years he could be given an upgrade in discharge.
3. The applicant provides no additional evidence or official documentation in support of his application.
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's military personnel records show he enlisted in the Regular Army on 10 February 1994 for a period of 3 years. He completed basic combat training and advanced individual training and was awarded the military occupational specialty 63W (Wheel Vehicle Repairer). On 11 July 1996, he reenlisted for a period of 3 years.
3. On 3 March 1999, the applicant pled guilty and was found guilty by a general court-martial of willfully and wrongfully confining, inveigling, carrying away, and holding a person against her will; wrongfully have sexual intercourse with a woman, not his wife; and unlawfully striking a person in the face. His sentence consisted of 18 months confinement and discharge from the service with a bad conduct discharge.
4. On 1 July 1999, the convening authority approved only so much of the sentence that provided for 12 months confinement and a bad conduct discharge.
5. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK General Court-Martial Order Number 6, dated 10 January 2001, stated the applicant's sentence, as approved by the convening authority, was affirmed and ordered that the bad conduct discharge be executed.
6. On 19 August 2002, the applicant was discharged with a bad conduct discharge as a result of a court-martial conviction. He had completed 7 years,
9 months, and 14 days of active service. He had 8 months and 21 days of time lost.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.
8. 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 Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to the ABCMR requesting a change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.
2. The evidence shows that the applicants trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.
3. 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.
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) AR20090009695
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090009695
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100024937
The applicant requests upgrade of his bad conduct discharge to an honorable discharge. 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. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct...
ARMY | BCMR | CY2011 | 20110023153
IN THE CASE OF: BOARD DATE: 7 June 2012 DOCKET NUMBER: AR20110023153 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge to a general discharge. This form further shows his character of service as bad conduct.
ARMY | BCMR | CY2013 | 20130012940
IN THE CASE OF: BOARD DATE: 3 April 2014 DOCKET NUMBER: AR20130012940 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.
ARMY | BCMR | CY2013 | 20130019148
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. Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed. Conviction and discharge were effected in accordance with...
ARMY | BCMR | CY2012 | 20120005482
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. On 20 August 2003, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 3, by reason of court-martial with a bad conduct discharge. When authorized, it is...
ARMY | BCMR | CY2011 | 20110003748
His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. ABCMR Record of Proceedings (cont) AR20110003748 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of...
ARMY | BCMR | CY2012 | 20120006801
His DD Form 214 shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 3, with a bad conduct characterization of service. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his...
ARMY | BCMR | CY2010 | 20100007530
The applicant requests his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge (GD). When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2011 | 20110019162
On 15 November 1993, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct character of service. 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. After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable or a general discharge or any...
ARMY | BCMR | CY2015 | 20150001485
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. This form further shows his character of service as bad conduct and that he completed 4 years, 5 months, and 10 days of creditable military service. When authorized, it is issued to a Soldier whose military record is satisfactory but not...