IN THE CASE OF:
BOARD DATE: 4 January 2011
DOCKET NUMBER: AR20100017080
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 his bad conduct discharge (BCD) be upgraded.
2. The applicant states he had many accomplishments in the Army and received two honorable discharges. He believes he deserves an upgraded discharge based on his two honorable periods of service.
3. The applicant does not provide any additional documentation.
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 he enlisted in the Regular Army on 15 September 1975, was awarded the military occupational specialty of combat signaler, served three tours of duty in Germany, and was promoted to pay grade E-5. The applicant immediately reenlisted on 16 November 1978 and 31 August 1981.
3. On 2 February 1989, the applicant was found guilty by a general court-martial of the following:
a. on 15 August 1988, committing an indecent act with a female under 16 years of age, not his wife, and
b. on 15 August 1988, wrongfully and unlawfully making under lawful oath a false statement, which statement he did not then believe to be true.
4. The applicant was sentenced to a BCD, confinement for 30 months, forfeiture of all pay and allowances, and reduction to pay grade E-1.
5. The court-martial's sentence was approved, in part, and ordered executed with the exception of the discharge. The convening authority reduced the forfeiture to $349.00 per month for 30 months.
6. On 30 March 1990, the U.S. Army Court of Military Review approved the applicant's court-martial finding of guilty and the sentence.
7. On 14 September 1990, the applicant's BCD was ordered to be executed.
8. On 19 October 1990, the applicant was issued a BCD accordingly. He had 13 years, 4 months, and 1 day of creditable active service.
9. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge. It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
10. Court-martial convictions stand as adjudged or as 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 did, in fact, honorably complete two enlistments prior to being convicted by a court-martial. These discharges have been considered.
2. It is apparent that the court and approving authority determined the applicant's prior honorable service was not sufficiently mitigating to warrant a sentence lacking a punitive discharge.
3. The applicant provides no evidence of error or injustice..
4. The gravity of the applicant's offense warranted a BCD.
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 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) AR20100017080
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100017080
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110011364
Application for correction of military records (with supporting documents provided, if any). The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge. Except for the BCD, the sentence would be executed.
ARMY | BCMR | CY2014 | 20140012506
IN THE CASE OF: BOARD DATE: 12 March 2015 DOCKET NUMBER: AR20140012506 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 July 1991, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial.
ARMY | BCMR | CY2012 | 20120004596
The applicant requests an upgrade of his bad conduct discharge (BCD) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Army Good Conduct Medal. His DD Form 214 shows he was discharged on 24 April 1990 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as the result of court-martial. The available evidence clearly shows Permanent Order 3-1 awarding him the Army Good Conduct Medal...
ARMY | BCMR | CY2010 | 20100030236
The applicant requests, in effect, an upgrade of his bad conduct discharge (BCD). The convening authority approved the sentence and the U.S. Army Court of Military Review affirmed the findings and sentence on 9 October 1990. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
ARMY | BCMR | CY2011 | 20110015959
IN THE CASE OF: BOARD DATE: 16 February 2012 DOCKET NUMBER: AR20110015959 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant provides three letters in support of his application: CONSIDERATION OF EVIDENCE: 1. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 29 April 1991 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.
ARMY | BCMR | CY2006 | 20060010146
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 March 2007 DOCKET NUMBER: AR20060010146 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. On 17 December 1987, the applicant was honorably separated from active duty after completing 2 years, 9 months, and 13 days of creditable active service with no time lost. By law, the Army Board of Correction for...
ARMY | BCMR | CY2009 | 20090021251
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. On 21 August 1990, the applicant was discharged with a BCD, under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial. The evidence of record confirms the applicant's conviction and...
ARMY | BCMR | CY2012 | 20120000824
IN THE CASE OF: BOARD DATE: 24 July 2012 DOCKET NUMBER: AR20120000824 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He completed 2 years, 5 months, and 4 days of net active service. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2013 | 20130002144
The applicant requests the following: * an upgrade of his 1992 bad conduct discharge (BCD) to a general discharge based on his 10 years of service * correction to Item 12 (Date Entered AD (active duty) This Period) of his DD Form 214 (Certificate of Release or Discharge from AD), ending on 10 March 1992, to show 8 August 1976 2. Effective 1 October 1979, Army Regulation 635-5 was changed to reflect that the DD Form 214 would not be prepared for enlisted members discharged for immediate...
ARMY | BCMR | CY2010 | 20100015430
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. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of...