BOARD DATE: 5 April 2011
DOCKET NUMBER: AR20100023455
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, in effect, he was charged with failing to report an incident when he had no knowledge of the offenses committed.
3. The applicant provides no documentary evidence 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 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. 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 applicants 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 24 January 1978, and held and served in military occupational specialty 76V (Storage Supply Specialist). His record shows he attained the rank of private first class (PFC)/
E-3 on 24 January 1978 and this is the highest rank he attained while serving on active duty. The record also shows he was reduced to private/E-2 for cause on 19 June 1978, and to private/E-1 on 18 August 1978.
3. The applicant's record documents no acts of valor or significant achievement. It does show a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 June 1998, for being absent without leave (AWOL) from 5 to 7 June 1978.
4. On 12 July 1978, a general court-martial (GCM) found the applicant guilty of two specifications of violating Article 125 of the UCMJ by committing sodomy by force on or about 15 and 17 April 1978. The resulting sentence was a BCD, a forfeiture of all pay and allowances, and confinement at hard labor for 21 months.
5. On 3 January 1979, Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas GCM Order Number 9, directed, the sentence having been affirmed under Article 66 and the provisions of Article 71c having been complied with, that the sentence be duly executed.
6. On 2 March 1979, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD. The DD Form 214 he was issued shows he completed a total of 5 months and 14 days of creditable active military service and he had accrued 235 days of lost time due to being in confinement.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or BCD. It stipulated a Soldier would be given a BCD pursuant only to an approved sentence of a general or SPCM and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.
8. 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 contends that his BCD should be upgraded because he was punished simply for not reporting an incident has been carefully considered. However, there is insufficient evidence to support this claim. The evidence shows he was given the BCD for committing the offenses.
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. Therefore, given his disciplinary history and the gravity of the offenses 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.
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) AR20100023455
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ABCMR Record of Proceedings (cont) AR20100023455
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