IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027104 


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 to an honorable discharge (HD).  

2.  The applicant states he was wrongfully accused and has become a model citizen since his discharge.  He states he has now become disabled and would like to get his records straight.   

3.  The applicant provides two third-party character references 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 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 record shows he enlisted in the Regular Army on 9 February 1984, and was trained in, awarded and served in military occupational specialty 11C (Infantry Indirect Fire Crewman).  His record also shows he was promoted to specialist four/E-4 (SP4/E-4) on 9 February 1986, and that this is the highest rank he attained while serving on active duty.  The record also shows he was reduced to private/E-1 for cause on 27 March 1989.  His record documents no acts of valor or significant achievement. 

3.  On 18 January 1989, a special court-martial (SPCM) found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:

	a.  Article 120 – by committing carnal knowledge with a person not his wife who at the time was under age 16;

	b.  Article 107 – by making a false official statement to military police with the intent to deceive; and 

	c.  Article 111 – by operating a passenger vehicle while drunk.

4.  The resulting approved SPCM sentence, promulgated in Headquarters, United States Army Berlin SPCM Order Number 6, dated 27 March 1989, was a forfeiture of $400.00 per month for six months; confinement for six months; reduction to private/E-1; and to be discharged from service with a BCD.  

5.  On 17 November 1989, the United States Army Court of Military Review affirmed the guilty findings and approved sentence.  

6.  On 16 March 1990, Headquarters, U.S. Army Correctional Brigade, Fort Riley, Kansas, SPCM Order Number 20, directed, the sentence having been affirmed under Article 66 and the provisions of Article 71c having been complied with, that the BCD portion of the sentence be duly executed.

7.  On 27 March 1990, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 5 years, 
8 months, and 23 days of creditable active military service and that he had accrued 146 days of lost time due to confinement.



8.  On 23 April 1997, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military record, and all other available evidence, determined the applicant's discharged was proper and equitable.  The ADRB voted unanimously to deny the applicant request for an upgrade of his discharge and to not change the authority and reason for discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulates a Soldier will 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. 

10.   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 he was falsely accused and his BCD should be upgraded for this reason and because he has now become a model citizen.  However, there is insufficient evidence to support this claim.  

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 applicant’s post service conduct, as attested to in the supporting third-party letters, is noteworthy.  However, this factor alone does not support clemency.  The evidence reveals no error or injustice related to the applicant's 
court-martial and/or his subsequent discharge.  Therefore, based on 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)                                         AR20100027104



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ABCMR Record of Proceedings (cont)                                         AR20100027104



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