IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006278 


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 that his bad conduct discharge be upgraded to a fully honorable discharge.

2.  The applicant states that the characterization of his discharge was not in line with the conviction and did not take into account his outstanding record of service.

3.  The applicant provides copies of his evaluation reports, awards and decorations, a letter from his daughter, and a copy of his appeal.

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 8 May 1974 and served on active duty through a series of continuous reenlistments until he was honorably discharged on 7 December 1981.  He enlisted in the U.S. Army Reserve (USAR).

3.  On 19 July 1982, he was ordered to active duty in the Active Guard Reserve (AGR) Program as a USAR field recruiter.  He was promoted to the pay grade of E-7 on 5 February 1985.

4.  On 24 April 1987, he was convicted by a general court-martial of committing sodomy on another Soldier (PFC) on 4 October 1986.  He was sentenced to confinement for 6 months, reduction to the pay grade of E-1, a forfeiture of $600.00 per month for 6 months, and a BCD.

5.  On 7 April 1988, the United States Army Court of Military Review (USACMR) determined that there were administrative errors in the trial.  The USACMR affirmed the findings of guilty and set the sentence aside.  It authorized a rehearing on the sentence.   

6.  On 17 November 1988, a rehearing on the applicant’s sentence was conducted at Fort Riley, Kansas and the applicant received the same sentence as he received during the previous court-martial.  General Court-Martial Order Number 3 issued by Headquarters, 1st Infantry Division and Fort Riley on         27 January 1989,  announced the sentence of the rehearing. 

7.  On 23 May 1989, the USACMR affirmed the findings and sentence as approved by the convening authority.

8.  On 26 September 1989, he was discharged pursuant to a duly-reviewed and affirmed court-martial conviction.  He had served 14 years, 7 months and 25 days of total active service with 147 days of time lost due to confinement. 

9.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

10.  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.  
11.  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.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his rank and his time in service at the time of his offense.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  

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 applicant's rank and years of service and absent any mitigating factors, the type of discharge directed and the reasons therefore 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)                                         AR20120006278





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ABCMR Record of Proceedings (cont)                                         AR20120006278



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