IN THE CASE OF:	  

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015175 


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 an upgrade of his bad conduct discharge and a change to the narrative reason for separation.

2.  The applicant states he was found not guilty at a court-martial and told his discharge would be upgraded after 6 months.

3.  The applicant provides copies of his personnel qualification record and discharge document.

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 28 October 1992.  Upon completion of training he was awarded military occupational specialty 12C (Bridge Crewmember).  He was promoted to sergeant/pay grade E-5 on 
1 November 1996.

3.  The applicant was arraigned at a general court-martial that convened on
7 April and 2-3 May 2000.

   a.  He pled not guilty and was found not guilty of the charge and specification of wrongfully procuring various women to engage in sexual intercourse for hire and reward with persons directed to them by the applicant. 

   b.  He pled not guilty and was found guilty of the charge and specification of wrongfully having sexual intercourse with a married woman not his wife.

   c.  He pled not guilty and was found guilty of the charge and specification of wrongfully committing indecent acts with three other persons by participating, directing, and filming himself and others engaged in sodomy and sexual activities.

   d.  He was sentenced to be reduced to the grade of E-1, to a forfeiture all pay and allowances, confinement for 134 days, and discharge with a bad conduct discharge.

   e.  On 5 December 2000, the convening authority approved only so much of the sentence that provided for a reprimand, reduction to the grade of E-1, a forfeiture of $663 per month until such time as the bad conduct discharge was executed, confinement for 134 days, and except for the bad conduct discharge ordered the sentence executed.  The applicant was credited with 134 days of pre-trial confinement towards the adjudged sentence.

4.  The applicant's records do not contain a copy of the U.S. Army Court of Military Review order affirming the findings and the sentence.

5.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 7, dated 2 January 2003, shows in the general court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 19 March 2003 with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation), section IV (Dishonorable and Bad Conduct Discharge) with the narrative reason "Court-Martial, Other."  At the time he had completed 10 years and 9 days of net active service.

7.  There is no evidence in the applicant's records that show he was advised that his discharge would be upgraded after 6 months.

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.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:
   
   a.  A member will be given a bad conduct discharge [DD Form 259A] pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

   b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  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.  The applicant contends his bad conduct discharge should be upgraded and the narrative reason for separation should be changed because he was found not guilty at a court-martial and told his discharge would be upgraded after 6 months.

2.  The record shows, at a general court-martial, the applicant was found not guilty of the charge and specification of wrongfully procuring various women to engage in sexual intercourse for hire and reward with persons directed to them by the applicant.  However, the record also shows the applicant was found guilty of the charge and specification of wrongfully having sexual intercourse with a married woman not his wife, and guilty of the charge and specification of wrongfully committing indecent acts with three other persons by participating, directing, and filming himself and others engaged in sodomy and sexual activities.  Thus, the applicant's contention is not fully supported by the totality of the evidence contained in the court-martial action and he is not entitled to a change in his narrative reason for separation.

3.  The applicant's 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 applicant's rights were protected throughout the court-martial process.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

6.  There is no evidence the applicant was advised that his bad conduct discharge would be upgraded 6 months after he was discharged.  The U.S. Army does not upgrade a discharge solely to enhance a Soldier's eligibility for Government benefits or based on the passage of time, nor has it ever had a policy of doing so.

7.  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)                                         AR20090015175



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ABCMR Record of Proceedings (cont)                                         AR20090015175



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