IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009005 


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, in effect, requests an upgrade of his bad conduct discharge (BCD) to honorable. 

2.  The applicant states the convening authority did not approve the BCD portion of the sentence.  The Department of Veterans Affairs (VA) award of education benefits shows he is entitled to an honorable discharge and Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) permits an honorable discharge even after a general court-martial conviction.  He never received a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) awarding him an honorable discharge, and he cannot get one from the National Personnel Records Center. 

3.  The applicant provides copies of extracts from various references, including Army Regulation 635-200, internet printouts, various service records, and VA documents.

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 apparently having had prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 8 April 1994.  His DD Form 214 shows he reenlisted on 29 April 1996, 15 October 1998, and 17 November 2004.

3.  The applicant was a 40 year old, married staff sergeant assigned as a recruiter when he was tried by a general court-martial for rape, indecent assault, violation of two lawful general regulations by wrongfully transporting an applicant in his government vehicle for the purpose of engaging in sexual activity, by engaging in sexual conduct with her, and for making a false official statement with intent to deceive.

4.  On 31 January 2007, the applicant was found not guilty of rape and the indecent assault charge was dismissed.  He was found guilty of violating two lawful general regulations and of making a false official statement. 

5.  The sentence consisted of reduction to pay grade E-1, a forfeiture of all pay and allowances, and a BCD.  The sentence was approved as adjudged and except for the BCD which was automatically pending appellate review, the sentence was ordered executed.

6.  On 31 March 2008, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence.  Article 71(c), Uniform Code of Military Justice (UCMJ) having been complied with, the BCD was ordered executed.  The applicant was discharged on 26 November 2008.  His DD Form 214 shows he had completed 14 years, 5 months, and 6 days of net active service this period and 3 years, 
11 months, and 23 days of prior active service.

7.  On 12 May 2009, the ABCMR denied the applicant's request to set aside the BCD.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

9.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant cannot get a copy of a DD Form 214 showing he has an honorable discharge because no such document exists.  

2.  The applicant has a completely valid BCD.  Trial by court-martial was warranted by the gravity of the offenses charged.  Contrary to his contention, the convening authority did approve his sentence to a BCD.  The U.S. Army Court of Criminal Appeals affirmed the findings and sentence.  Article 71(c), of the UCMJ was complied with and the BCD was ordered executed.  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.

3.  Army Regulation 635-200 applies to administrative discharges.  He did not receive an administrative discharge. 

4.  The applicant's contentions reflect either a misunderstanding or mis-representation of procedural matters which were conclusively finalized during  the court-martial appellate process.  They furnish no basis for re-characterization of his discharge. 

5.  In view of the foregoing there is no 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)                                         AR20120009005



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ABCMR Record of Proceedings (cont)                                         AR20120009005



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