IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013115 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he enlisted in the Regular Army (RA) in March 1976 to serve his country.

	a.  He attended basic and advanced individual training, and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He took 30 days leave and reported for duty in Germany on 19 October 1976.

	b.  He served in a military police (MP) unit, which means he actually served in duty MOS 95B (MP).

   c.  He began to experience foot pain.  However, due to the geographic location of the unit, it was an all-day process traveling by bus to see a doctor.

	d.  He was then assigned to the 85th U.S. Field Artillery Detachment where he performed special duties with units at the NATO site that involved 2 weeks on the site, 2 weeks on duty, and 4 weeks of preparation duty.

	e.  He reenlisted in the RA on 12 February 1979 and attended the Primary Noncommissioned Officer Course (PNCOC).  He then assumed duties involving greater responsibility that included leading drill and ceremony.


	f.  On 23 July 1979, he again began to experience pain in his feet.  On
2 June 1980, he had the calluses removed.  However, this became a recurring treatment and he also began treating the calluses by soaking and scraping them.

	g.  In June 1981, he was charged with rape and subsequently incarcerated at Fort Leavenworth, Kansas.

	h.  Since then, he has suffered from additional medical problems.

	i.  He adds that he served his sentence, he then went back to school for various vocational skills, and he has been a law-abiding citizen.

3.  The applicant provides documents from his military service records, three post-service certificates, his Department of Veterans Affairs (VA) claim, three background searches, and three letters of support.

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 RA on 24 March 1976 for a period of 3 years.  He completed training and was awarded MOS 11B1O.

3.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant was honorably discharged on 25 February 1979 to reenlist in the RA.  He completed 2 years, 11 months, and 2 days of net active service this period.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service):  Germany beginning 14 October 1976;

	b.  item 17 (Civilian Education and Military Schools):  PNCOC at the 
8th Noncommissioned Officers Academy in 1979;
	c.  item 35 (Record of Assignments): 

	 	(1)  duty MOS 11B1O (Security Guard), 545th Ordnance Company, from
19 October 1976 through 20 September 1977;

	 	(2)  duty MOS 11B1O (Security Guard), 6th MP Company, from
21 September through 31 October 1977;

	 	(3)  duty MOS 11B1O (Senior MP), 6th MP Company, from 1 November 1977 through 13 April 1979; and

	 	(4)  duty MOS 11B1OL9 (Assistant Team Chief), 85th U.S. Army Air Defense Detachment, from 14 April 1979 through 16 April 1980.

5.  U.S. Army Confinement Facility, Mannheim, Orders 19-4, dated 15 April 1980, authorized the transfer of the applicant as a prisoner for further confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.

6.  The applicant was tried by a general court-martial for the charge and two specifications of rape, the charge and two specifications of wrongfully communicating a threat to injure, and the charge and specification of committing sodomy.

	a.  He pled not guilty to the charges and specifications.

	b.  He was found guilty of:

* the charge and one specification of rape, and the charge and one specification of with intent to commit rape, did commit an assault
* the charge and two specifications of wrongfully communicating a threat to injure
* the charge and specification of committing sodomy

	c.  On 1 May 1980, he was sentenced to be reduced to private (E-1), to forfeit all pay and allowances, confinement at hard labor for 5 years, and a bad conduct discharge.

7.  On 9 July 1980, the convening authority approved the sentence, ordered the applicant's confinement in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and directed forwarding the record of trial to The Judge Advocate General of the Army for review by a U.S. Army Court of Military Review.

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 276, dated 24 April 1981, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement at hard labor having been served, the sentence was ordered duly executed.

9.  Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, Order 103-6, dated 28 May 1981, discharged the applicant with a bad conduct discharge, effective 11 June 1981.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 June 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, with a bad conduct discharge.  He completed 1 year, 2 months, and 5 days of net active service this period.  It also shows in:

	a.  item 18 (Remarks):  Time lost under Title 10, U.S. Code, section 972, from 1 May 1980 through 11 June 1981; and

	b.  item 28 (Narrative Reason for Separation):  Headquarters, 32nd Army Air Defense Command, APO New York 09175, General Court-Martial Order Number 9, dated 9 July 1980, as corrected by Court-Martial Order Correcting Certificate, U.S. Army Court of Military Review, dated 15 July 1980, and Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 276, dated 24 April 1981.

11.  In support of his application, the applicant provides the following documents:

	a.  Company C, 5th Battalion, 1st Basic Combat Training Brigade, Fort Jackson, South Carolina, Letter of Appreciation, dated 3 August 1976, issued for the applicant's outstanding effort while acting as a drill corporal.

	b.  DA Form 2496-1 (Disposition Form), dated 29 October 1979, showing the commander's approval of award of the Army Good Conduct Medal to the applicant for the period 24 March 1976 through 23 March 1979.

	c.  Headquarters, 557th U.S. Army Artillery Group, Recommended List for Promotion to Grade E-5, effective 14 February 1980, pertaining to the applicant.

	d.  U.S. Army Regional Personnel Center Giessen, Orders 058-43, dated
27 February 1980, that withdrew primary MOS 11B1OL9 and awarded the applicant primary MOS 11B1O, effective 1 September 1978.

	e.  U.S. Army Regional Personnel Center Giessen, Orders 312-70, dated
8 November 1979, and Orders 059-69, dated 28 February 1980, that revoked the applicant's reassignment from Germany to Fort Campbell, Kentucky.

	f.  Three certificates that show the applicant was recognized:

* by his church congregation on 2 June 2010
* for his attendance at the 19th District's Fourth Saturday Workshops 
* for his 20 years of service with Hess

	g.  His VA claim, dated 29 October 2010 and 17 May 2011, requesting personal appearance at a hearing to review his discharge.

	h.  Two State of North Carolina, Criminal Record Searches, dated 4 May 2011 and 5 May 2011, that revealed one traffic ticket and two infractions pertaining to the applicant.

	i.  Three letters of support:

	 	(1)  The letter from the applicant's wife, dated 1 November 2010, describes the applicant's foot condition and the treatment that has been required over the 25 years of their marriage.

	 	(2)  The two letters from his daughters, both dated 16 May 2011, attest to the applicant's dedication as a father and role model, and his commitment to both his faith and family.

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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.

   b.  Chapter 3, 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.

	c.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-2, provides that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded because he was a good Soldier before the incident in question and he has led a positive life since he was discharged from the U.S. Army.

2.  Records show that a DD Form 214 documents the applicant's period of honorable active duty service from 24 March 1976 through 25 February 1979.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and bad conduct discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20110013115



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ABCMR Record of Proceedings (cont)                                         AR20110013115



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