IN THE CASE OF:	  

		BOARD DATE:	 31 August 2010 

		DOCKET NUMBER:  AR20100007956 


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 an honorable discharge.

2.  The applicant states he was not given a fair trial, tapes were lost, and his sentence was reduced when he requested "some justice."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a website printout regarding Title 10 U.S. Code 972 (lost time), an extract from Army Regulation 635-200 (pages 45-46), and three letters of support.

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 military records show that he enlisted in the Regular Army on 15 August 1985.  He completed initial entry training, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-4.  He was released from active duty on 16 May 1988 due to a reduction in authorized strength of the Army.  On 26 September 1988, he again enlisted for 4 years in the Regular Army.

3.  On 7 January 1992, a general court-martial convicted the applicant of indecent assault on or about 27 July 1991.

4.  On 9 April 1992, the findings of guilty were approved.  The convening authority ordered a rehearing on the sentence.

5.  A rehearing on sentencing was held due to a lost audio tape of the sentencing portion of his court-martial proceedings.  General Court-Martial Order Number 46 shows that the sentence was adjudged on 14 May 1992.  He was sentenced to forfeiture of $400.00 per month for 12 months, confinement for 1 year, reduction to the grade private E-1, and a bad conduct discharge.

6.  The convening authority approved the sentence.  The U.S. Army Court of Military Review affirmed the findings and sentence on 4 March 1993.  The U.S. Court of Military Appeals denied the applicant's petition for review on 21 June 1993.

7.  General Court-Martial Order Number 162, dated 8 November 1993, shows the sentence was affirmed.  It shows the appellate review was completed and the sentence was ordered executed.

8.  Accordingly, on 4 January 1994, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, section IV, as a result of a court-martial.  He was given a bad conduct discharge.  The DD Form 214 he was issued shows he completed 4 years, 5 months and 27 days of active service for this period.  It further shows he completed 2 years, 9 months and 2 days of prior active and 1 year and 9 days of prior inactive service.  Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972: 920107-920409; 920410-921018."

9.  Army Regulation 635-200, paragraph 3-11, provides 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.

10.  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.

11.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

12.  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. While the applicant contends he was not given a fair trial he has provided no evidence to support this contention.

2.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial for indecent assault.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were affected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's entire military record was taken into consideration; however, given the seriousness of the offense his service is appropriately characterized.

4.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or general 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)                                         AR20100007956



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)