IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110015969 


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 (BCD).

2.  The applicant states his discharge was unjust.  He states he was charged with four offenses:  rape, indecent exposure, adultery, and disobeying a lawful order.  He states he was found innocent of the rape charge and he pled guilty to the other three charges.  He was sentenced to 6 months incarceration and he received a BCD.  He further states the individual he was involved with was sent home from Iraq and received an honorable discharge, when in fact she also disobeyed a lawful order and committed adultery in addition to indecent exposure.  He believes both parties should have been treated equally because they each did the same thing.

3.  The applicant provides 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 was born on 27 October 1979 and he enlisted in the Regular Army on 21 April 1999 at 19 years of age.  He completed training and he was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  His record contains General Court-Martial Order Number 82, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 23 June 2005.  that states in a general court-martial case of the applicant, the sentence to a BCD, confinement for 6 months, forfeiture of all pay and allowances, and reduction to PV1/E-1, adjudged on 8 January 2004, as promulgated in General Court-Martial Order Number 32, issued by Headquarters, Fort Stewart, GA, dated 15 October 2004, has been affirmed.  That portion of the sentence pertaining to confinement has been served.  Article 71(c) having been complied with, the BCD will be executed.

4.  The complete facts and circumstances of his discharge are not available for review.  However, his record contains a DD Form 214 that shows he was discharged on 19 August 2005 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial with a BCD.  He completed 5 years, 10 months, and 28 days of creditable active service with 150 days of time lost.

5.  During the processing of this case, a staff member of the Board attempted to retrieve the complete record of trial from the archives; however, the record was unavailable for review.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will 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 affirmed  sentence ordered duly executed.

7.  Army Regulation 635-200 provides for the following characters of service:

	a.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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.

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 available evidence shows he was convicted by a general court-martial.  The conviction and discharge were effected in accordance with applicable laws and regulation.

2.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  The applicant states he was found innocent of the charge of rape; however, he also states he pled guilty to indecent exposure, adultery, and disobeying a lawful order.  There is no evidence in the applicant’s record nor did he provide any evidence to corroborate his statement regarding the individual he was involved with.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 absence of 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 an insufficient evidentiary 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)                                         AR20110015969



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ABCMR Record of Proceedings (cont)                                         AR20110015969



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