IN THE CASE OF:	

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017849 


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 (BCD).

2.  The applicant states he would like his discharge upgraded to improve his employment opportunities and his ability to care for his family.  

3.  The applicant provides a Congressional Inquiry packet 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's record shows he enlisted in the Regular Army and entered active duty on 4 January 1995.  He was trained in and awarded military occupational specialty (MOS) 31R (Multi-Channel Transmission System Operator) and private first class/E-3 is the highest rank he attained while serving on active duty.  

3.  The applicant's record shows he earned the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement. 

4.  On 13 May 1996, a general court marital (GCM) found the applicant guilty of violating Article 80 of the Uniform Code of Military Justice (UCMJ) by committing attempted rape on or about 11 November 1995.  The resulting sentence was a forfeiture of all pay and allowances, reduction to private/E-1, confinement for 
10 months, and a BCD.  

5.  GCM Order Number 51, Headquarters, 1st Cavalry Division, Fort Hood, Texas, dated 3 October 1996, show the sentence adjudged on 13 May 1966 was approved.  

6.  On 21 July 1998, the United States Army Court of Criminal Appeals affirmed the findings of guilty and sentence approved by the GCM convening authority in the applicant's case.  

7.  On 10 December 1998, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 160 directed, the sentence having been finally affirmed and Article 71(c) of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.

8.  On 21 December 1998, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200, (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued at the time shows he completed a total of 3 years, 3 months, and 16 days of creditable active military service and he had accrued 235 days of time lost due to being in confinement. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  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 contention that his BCD should be upgraded to improve his employment opportunities and his ability to better care for his family has been carefully considered.  While this goal is admirable, the factors are not sufficiently mitigating to support granting the requested relief. 

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  

3.  The evidence reveals no error or injustice related to the applicant's 
court-martial and/or his subsequent discharge.  In addition, his record documents no acts of valor or significant achievement.  Therefore, given the gravity of the offense resulting in his court-martial conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge. 

4.  In order to justify correction of a military record, the applicant must show 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)                                         AR20090017849



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ABCMR Record of Proceedings (cont)                                         AR20090017849



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