IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120000453 


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.

2.  He states his punishment for being convicted of adultery was excessive.  He also requests an upgrade of his BCD in order to receive Department of Veterans Affairs (VA) benefits. 

3.  He provides two supporting statements.

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.  After having had prior service, the applicant enlisted in the Regular Army on   2 May 1987.
He was credited with 5 years, 1 month, and 12 days of foreign service in which 19 December 1990 to 28 April 1991 was served in Southwest Asia.

3.  On 25 July 1996, he was convicted by a special court-martial of adultery.  The court sentenced him to reduction the grade of E-1, hard labor without confinement for 3 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on an unknown date.  The BCD was ordered executed on 26 October 1996.

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 31 August 2000 under the provisions of Army Regulation 635-200, chapter 3.  He had completed 13 years, 3 months, and 29 days of active service during the period under review and had received numerous awards and decorations to include the Bronze Star Medal.  

5.  The two supporting statements submitted by the applicant speak highly of his character.  His Pastor said that he was impressed with the applicant's dedication concerning the Lord and his church.  The Director of the Life/Career Transformation Center stated the applicant always displayed a high degree of integrity, responsibility, and ambition while attending the classes.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or a BCD.  It 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 must be ordered duly executed.

7.  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.

8.  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.  

9.  Court-martial convictions stand as adjudged or as 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.  Manual for Courts-Martial (MCM) states the maximum punishment for Article 134, adultery, wrongfully having sexual intercourse with a person at the time he/she or the other person was married to someone else is a dishonorable discharge, forfeiture of all pay and allowance, and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded in order to receive benefits from VA was considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

2.  Additionally, his argument that his punishment for conviction of adultery was excessive was also considered.  In accordance with the MCM the maximum punishment for adultery is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.  Therefore, his argument that his punishment was excessive is not supported by the available evidence. 

3.  He was convicted by a special court-martial which was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  He was given a BCD pursuant to an approved sentence of a special 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.

5.  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.  While there is a record of distinguished service, it is assumed that this service was taken into consideration at the time of sentencing. Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120000453





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ABCMR Record of Proceedings (cont)                                         AR20120000453



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