IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120011518 


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, in effect, an upgrade of his bad conduct discharge.

2.  The applicant states, in effect, he was assaulted by a Soldier and he had to take medicine.  The medicine made him sick.  During that time, he was stressed and depressed.  The applicant indicates the charge for indecent exposure was due to an incident that occurred in the bathroom of a movie theater at Fort Lee, VA, in 1976.  This has caused him to suffer homelessness, no health care, mental care, or support. 

3.  The applicant did not provide any evidence.

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's records show he enlisted in the Regular Army on 18 June 1974 and he held military occupational specialty 76V (Materiel Support Specialist).  

3.  He was awarded or authorized the National Defense Service Medal.  He was assigned to Fort Lee, VA.  The highest rank/grade he attained was private/E-1.

4.  On 20 January 1975, he was convicted by a special court-martial of one specification of committing an assault upon a female by pulling her from her bed, placing his body on top of hers, and moving his body against hers in an undulating movement with intent to gratify his sexual desires.  The Court sentenced him to confinement at hard labor for 3 months and a bad conduct discharge.  

5.  On 25 April 1975, the convening authority approved the sentence and except for the bad conduct discharge, he ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

6.  On 7 May 1975, the applicant was convicted by a special court-martial of willfully and wrongfully exposing in an indecent manner to public view his pexxx while at the Fort Lee Post Theater.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $225.00 pay for 6 months.  The convening authority approved his sentence on 26 June 1975.

7.  On 3 October 1975, after having served the period of confinement adjudged on 7 May 1975, he was restored to duty pending completion of the appellate review. 

8.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 32, dated 29 January 1976, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

10.  On 13 February 1976, the applicant was discharged from the Army under the provisions of chapter 11, Army Regulation 635-200 (Enlisted Separations) with a Bad Conduct Discharge Certificate.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of
8 months and 16 days of creditable military service and he had 340 days of lost time.
11.  On 28 September 1978, the Army Discharge Review denied his petition for an upgrade of his discharge.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant 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 the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  The applicant was convicted by two courts-martial.  He was tried by a court-martial that adjudged a bad conduct discharge for the charge/specification of assaulting a female, not for indecent exposure.  The indecent exposure charge was a separate court-martial action.  


3.  He was given a bad conduct discharge 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.  

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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 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)                                         AR20120011518



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ABCMR Record of Proceedings (cont)                                         AR20120011518



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