BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100017547 


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 upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  He states he received a BCD in 1989 and the discharge was unjust because he had served the Army for over 4 years.  During that time he never had a bad review and had received a Good Conduct Medal, Army Achievement Medal, and NonCommissioned Officer Professional Development Ribbon.  He does not deny the charges that he was tried for.  During the trial he was informed he could fight the charges or plead guilty and the judge would determine the sentence.  His biggest concern was being discharged.  He was willing to accept a reduction in pay grade and other appropriate punishment.  His appointed lawyer led him to believe the judge would not seek a discharge; however, he was given a BCD.  He was tried under a special court-martial and an officer could not have been discharged or confined under this type of court-martial.  He feels he was not given the opportunity to prove himself and continue to serve.  It has been over 20 years since his discharge and he is constantly reminded of his mistake.  His discharge prevents him from transferring within the company he works for to the department that builds a high-speed backhoe for the Army.

3.  He provides two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 


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 U.S. Army Reserve Delayed Entry Program on 16 July 1984.  He enlisted in the Regular Army, in pay grade E-2, on 23 October 1984, for 4 years.  He completed training and he was awarded military occupational specialty 63N, Tank System Mechanic.  He was promoted to pay grade E-5 on 1 August 1988.  He served in Germany from 21 November 1986 through 20 November 1989.

3.  On 19 June 1989, he was convicted, pursuant to his pleas, by a special court-martial of three specifications of willfully and wrongfully exposing his nude body in a photograph to wives of three other Soldiers on 1, 8, and 9 March 1989 and two specifications of communicating in writing certain indecent language to two of the wives on 1 and 8 March 1989.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $466.00 pay per month for 3 months, confinement for 100 days, and a BCD.  

4.  On 17 July 1989, the convening authority approved only so much of the sentence as provided for reduction, forfeiture, and confinement for 3 months, and except for the BCD, he ordered it duly executed.

5.  On 22 February 1990, the U.S. Army Court of Military Review found that the only reasonable interpretation of the convening authority's actions included approval of the BCD.  Per U.S. vs. Loft, the fact that such approval was implicit rather than explicit did not make it invalid.  Accordingly, the U.S. Army Court of Military Review approved the findings of guilty and found the sentence correct in law and fact and affirmed the entire sentence, to include the BCD.  


6.  There is no evidence he petitioned the U.S. Court of Military Appeals for a review of his case.

7.  Special Court-Martial Order Number 10, dated 22 January 1991, published by the U.S. Army Armor Center, Fort Knox, KY, ordered his BCD duly executed and found that the part of the sentence extending to confinement had been served.

8.  On 15 February 1991, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of a court-martial, and issued a BCD.  He was credited with 6 years, 1 month, and 4 days of net active service during the period under review and time lost from 19 June to 7 September 1989.

9.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

13.  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 change a discharge due to matters which should have been raised in the appellate 

process, 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The evidence of record shows he was convicted by a special court-martial for indecent exposure to the wives of three other Soldiers and communication of indecent language to two of the wives.  He was discharged pursuant to the sentence of a special court-martial and he was issued a BCD.

3.  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.  

4.  He has provided no evidence, other than his contentions, to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or credible argument to show his discharge should be upgraded.  

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)                                         AR20100017547



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ABCMR Record of Proceedings (cont)                                         AR20100017547



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