BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20110023951 


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 to honorable based on his military record and 12 years of exceptional service.

2.  The applicant states he made a mistake after 12 years of impeccable service. 
He was charged with and convicted of adultery.  His punishment consisted of a reduction in pay grade from E-7 to E-1 and a bad conduct discharge.  He accepts and regrets that his behavior and actions were inappropriate and not in keeping with military traditions and standards.  He asks that his type of discharge be reconsidered based on his years of service and his military record, and that it was his only mistake during his military service.  He states he was never in trouble before or since his discharge.  He adds that he made one mistake in over 12 years of service and the punishment, although within the law, might have been excessive.

3.  The applicant provides several of his enlisted and academic evaluation reports, military award certificates, and post-service training and award certificates.

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 9 September 1980.

3.  On 3 October 1991, he was found guilty by a general court-martial of the following offenses while serving in the rank/pay grade of sergeant first class/E-7:

* adultery with officer between 18 December 1990 and 28 February 1991
* false swearing on 14 May 1991
* obstruction of justice on 15 July 1991
* two specifications of failure to obey lawful orders on 24 and 25 April 1991

4.  He was sentenced to a bad conduct discharge and reduction to the rank/pay grade of private/E-1.  On 9 January 1992, the sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, was ordered executed.

5.  On 26 October 1992, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those finding of guilty and the sentence were affirmed.

6.  On 6 March 1995, the sentence having been affirmed and the provisions of Article 71c having been complied with, the bad conduct discharge was ordered to be executed.

7.  Accordingly, he was discharged on 13 April 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of court-martial with a bad conduct discharge.

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

	a.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge 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.

	b.  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.

	c.  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.

9.  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.

10.  Under the Uniform Code of Military Justice, the maximum punishment allowed for violation of Article 134 for adultery is a dishonorable or bad conduct discharge and confinement for one 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his bad conduct discharge has been carefully considered.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

3.  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 his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  His prior service conduct and accomplishments were noted; however, his record of indiscipline includes adultery, false swearing, obstruction of justice, and failure to obey lawful orders.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 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)                                         AR20110023951



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ABCMR Record of Proceedings (cont)                                         AR20110023951



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