IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014993 


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 be upgraded.

2.  The applicant states, in effect, that his discharge was unjust because the military lawyer refused to be his lawyer without speaking to him about what happened and then the lawyer harassed him by saying, "We are going for what is in black and white.  If you [are] not white, you are not right."  He also contends that he never saw the record of trial.  He goes on to state that urinating in his bathroom does not mean that he exposed himself to anyone, that the victim entered his apartment without permission and passed by the bathroom on her way to his child's room, that the victim's mother was not supervising her at the time, and that medical records show nothing happened to the victim.  He further indicates that immigration wants to deport him.

3.  The applicant provides no documentary evidence 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 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 on 3 January 1980 for a period of 4 years.  He successfully completed one-station unit training and basic armor training in military occupational specialty 19D (cavalry scout).

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 August 1984, shows the applicant received a "troop grade" Article 15 for orally communicating indecent and suggestive language to a child under 16 years of age.  His punishment consisted of a reduction to E-3 (suspended), extra duty, and restriction.

4.  On 25 August 1982, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, and extra duty.

5.  On 5 September 1984, a bar to reenlistment was imposed against the applicant.

6.  The applicant was absent without leave on 11 December 1984 while pending general court-martial charges.

7.  On 13 December 1984, the applicant was convicted contrary to his plea by a general court-martial of committing an indecent assault upon and taking indecent liberties with a female under 16 years of age and not his wife.  He was sentenced to be confined for 1 year, to be reduced to E-1, and to be discharged from the service with a bad conduct discharge.  On 8 February 1985, the convening authority approved the sentence.  The applicant was tried in absentia.

8.  On 27 January 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 8 July 1986, the convening authority ordered the bad conduct discharge to be executed.

9.  On 24 November 1986, the applicant returned to military control and was placed in military confinement.

10.  Accordingly, the applicant was discharged with a bad conduct discharge on 2 June 1987 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 4 years, 11 months, and 6 days of creditable active service with 905 days of lost time.

11.  Army Regulation 635-200 sets forth the basic authority for the 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.

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.

14.  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’s contentions relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.  The applicant did not provide evidence to substantiate his allegations regarding his military defense counsel.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service included a bar to reenlistment, two nonjudicial punishments, one general court-martial conviction for a serious offense (indecent assault and indecent liberties with a minor), and 905 days of lost time.  He was tried by general court-martial in absentia.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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)                                         AR20090014993



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ABCMR Record of Proceedings (cont)                                         AR20090014993



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