IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100007100 


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 to a general discharge under honorable conditions.

2.  He states nothing in his own behalf.

3.  He provides no documentary evidence in support of this 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 on 12 July 1978.  Upon completion of initial entry training he was awarded the military occupational specialty 13B (Cannon Crewman).  He reenlisted on 29 January 1981.  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.  However, at the time of separation he held the rank/pay grade of private/E-1.

3.  Headquarters, 3d Infantry Division, General Court-Martial Order Number 32, dated 29 March 1983, shows the applicant was arraigned at Schweinfurt, Federal Republic of Germany, on one charge of committing a lewd and lascivious act upon a female under the age of 16 at a general court-martial.  He pleaded guilty and was subsequently found guilty of the charge.

4.  The sentence was adjudged on 20 January 1983 and the sentence was approved on 29 March 1983.  He was sentenced to reduction to private/E-1, 
a forfeiture of all pay and allowances, confinement at hard labor for 15 months, and a bad conduct discharge.

5.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 420, dated 3 October 1983, shows his aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.  The order also shows that portion of the sentence pertaining to confinement would be served in the U.S. Army Confinement Facility located on Fort Riley, KS.

6.  Headquarters, U.S. Army Correctional Activity, Fort Riley, Orders 201-4, dated 18 October 1983, show he was to be discharged on 21 October 1983.  

7.  Headquarters, U.S. Army Correctional Activity, Fort Riley, General Court-Martial Order Number 453, dated 21 October 1983, shows the unexecuted portion of his sentence to confinement was remitted.

8.  On 21 October 1983, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows he completed 1 year, 11 months, and 9 days of creditable active military service during his most recent period of enlistment.  This form also shows he had lost time from 20 January 1983 to 19 October 1983 and 20 October 1983.  His service was characterized as "BAD CONDUCT" and the narrative reason for his separation was "as a result of court-martial."

9.  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.

10.  Army Regulation 635-200 (Enlisted Separations), 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 that his bad conduct discharge should be upgraded to a general discharge under honorable conditions.

2.  The available evidence shows the applicant committed a serious crime which rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  This crime resulted in him being tried by a general court-martial which was warranted by the gravity of the offense charged.  His 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.  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.

4.  The applicant's available record was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and his lost time, it is also clear that his service was not satisfactory, thus he did not meet the criterion for a general discharge under honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded 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)                                         AR20100007100



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2010