IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100023915 


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, in effect, upgrade of his bad conduct discharge (BCD).

2.  He states the BCD does not properly reflect his service or duty to the U.S. Army and had no bearing on his job performance.

3.  He did 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 enlisted in the Regular Army on 3 September 1985.  He was trained in and awarded military occupational specialty 24T (Patriot Operator and System Mechanic).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

* Item 5 (Oversea Service) he served three oversea tours of duty in Korea, Saudi Arabia, and Germany, respectively
* Item 9 (Awards, Decorations and Campaigns) the:

* Army Commendation Medal
* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Southwest Asia Service Medal
* Noncommissioned Officer Professional Development Ribbon with Numeral "2"
* Army Service Ribbon
* Overseas Service Ribbon

4.  General Court-Martial (GCM) Order Number 29, issued by Headquarters,
3rd Infantry Division, dated 6 April 1993, shows that on 5 February 1993 he entered a plea of guilty to/and he was convicted of three charges of violating the Uniform Code of Military Justice (UCMJ) under:

* Article 125 for committing sodomy with a child under the age of 16 on or about 14 November 1992
* Article 134 for committing indecent acts upon a child under the age of 16 between on or about 20 October 1992 to 15 November 1992
* Article 128 for assault and battery on a child under the age of 16 on or about 8 September 1991

5.  This GCM order shows he was sentenced to confinement for 5 years, reduction to the rank/grade of private (PV1)/E-1, and a BCD.  On 6 April 1993, the GCM Convening Authority (GCMCA) approved only so much of the applicant's sentence pertaining to reduction to PV1/E-1, confinement for 4 years, and a BCD, and except for the part of the sentence extending to the BCD, will be executed.


6.  Item 21 (Lost Time) of his DA Form 2-1 shows he was placed in military confinement from 5 February 1993 through 27 May 1994 pending the appellate review of his court-martial.

7.  GCM Order Number 117, issued by the U.S. Army Disciplinary Barracks, U.S. Army Combined Arms Command, Fort Leavenworth, KS, dated 6 May 1994, affirmed the applicant's sentence to a BCD, confinement for 4 years, and reduction to PV1/E-1, adjudged on 5 February 1993, as promulgated on 6 April 1993.  Article 71(c) having been complied with, the BCD will be executed.  On
10 March 1994, the U.S. Army Court of Military Review considered his petition for grant of review and denied the same.

8.  On 27 May 1994, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, paragraph 
3-11, as a result of a court-martial with a BCD.  He had completed 7 years, 
5 months, and 2 days of creditable active service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or BCD.  It stipulated that a Soldier would be given a BCD 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.  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 characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which include the well-being of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, 


prevention of sexual harassment, and the Army Sexual Assault Prevention and Response Program.  It states in Appendix:

* C–9, Armed Forces’ standards of conduct, the standards of conduct for members of the Armed Forces regulate a member’s life 24 hours each day beginning at the moment the member enters the military status and not ending until the person is discharged or otherwise separated from the Armed Forces
* C–10, When standards of conduct apply, those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the Armed Forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty

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.  His contention that his BCD should be upgraded because it does not properly reflect his service or duty to the U.S. Army and had no bearing on his job performance was carefully considered; however, there is no evidence that shows his GCM was in error or unjust.

2.  The evidence of record shows the he was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offenses for which he was charged and convicted and the sentence is commensurate with the misconduct for which he was convicted.  His service was not sufficiently meritorious to warrant granting clemency. 

3.  The applicant's contention that the BCD had no bearing on his job performance was also considered; however, it also lacks merit.  The Armed Forces' standard of conduct applies from the time a Soldier enters military status until he/she is discharged or otherwise separated from the Armed Forces a Soldier standard of conduct, and whether he/she is on base or off base, and whether he/she is on duty or off duty.  Therefore, this contention is unsupported.


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 seriousness of the offenses for which he was convicted and which occurred over a number of years, 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.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100023915



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ABCMR Record of Proceedings (cont)                                         AR20100023915



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