BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120013651 


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 dishonorable discharge.

2.  He states, in effect, he would like his discharge upgraded so he would be eligible for Department of Veterans Affairs (VA) benefits as an Operations Desert Shield/Desert Storm veteran who served honorably from 1987 through 1996.  He feels he should have been considered for a discharge under other than honorable conditions.

3.  He provides a U.S. Army Human Resources Command (AHRC) 
Form 3553-1E (Statement of Military Service) and an AHRC information paper.

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 military records show he was appointed in the U.S. Army Reserve (USAR) Medical Services Corps as a captain on 23 June 1987 with 10 years of constructive service credit.  He was promoted to lieutenant colonel on 1 June 1995.

3.  On 23 October 1996, he was convicted by a general court-martial of one specification each of:

* committing an indecent assault upon a female, not his wife, by offensively touching her breast and placing his hand on his genitalia with intent to gratify his sexual desires on or about 22 May 1996
* committing an indecent assault upon a second female, not his wife, by offensively touching her breast with intent to gratify his sexual desires on or about 23 May 1996
* committing an indecent assault upon a third female, not his wife, by offensively touching her breast with intent to gratify his sexual desires on or about 23 May 1996
* committing an indecent assault upon a fourth female, not his wife, by offensively touching her breast with intent to gratify his sexual desires on or about 28 May 1996
* committing an indecent assault upon a fifth female, not his wife, by offensively touching her breast with intent to gratify his sexual desires on or about 29 May 1996
* conduct unbecoming an officer and gentleman by taking advantage of the trust placed in him as a medical doctor to indecently assault four females to the disgrace of the Armed Forces on or about 21 May and 29 May 1996

4.  The court sentenced him to forfeiture of all pay and allowances, confinement for 2 years, and dismissal from the service.

5.  On 21 February 1997, the convening authority approved the sentence and, except for dismissal from the service, ordered the sentence duly executed.

6.  On 5 October 2000, the U.S. Army Court of Criminal Appeals set aside and dismissed the charge of conduct unbecoming an officer and its specifications and affirmed the remaining findings of guilty and the sentence.

7.  On 13 March 2001, the U.S. Court of Appeals for the Armed Forces affirmed the decision of the U.S. Army Court of Criminal Appeals.

8.  Headquarters, Department of the Army, General Court-Martial Order Number 16, dated 27 July 2001, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's sentence executed and the applicant dismissed from the U.S. Army effective 17 August 2001.

9.  On 28 January 2010, AHRC issued an AHRC Form 3553-1E stating there was no evidence of periods of extended active duty on file for the applicant.  The applicant's period of Reserve service dates were 23 June 1987 through 18 December 1996.

10.  On 29 January 2010, AHRC advised the applicant:

	a.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) is issued only upon completion of 90 or more days of active duty.  Members of the USAR are not issued a DD Form 214 for their Reserve service.

	b.  Due to the unavailability of records, AHRC officials were unable to provide the DD Form 214 and/or the other documents requested.  The enclosed AHRC Form 3553-1E is a replacement for the DD Form 214 and/or Verification of Reserve Service.  This form has been affixed with the official seal of The Adjutant General as proof of its authenticity.

11.  A Chronological Statement of Retirement Points, dated 24 January 2013, shows he served in the USAR in a commissioned status from June 1987 through June 1997.

12.  The Persian Gulf War Roster shows those Soldiers who served in the Persian Gulf War (Operations Desert Shield/Desert Storm).  This list does not show his name.

13.  Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers) prescribes the policies governing the separation of Reserve officers of the Army.

	a.  Paragraph 1-5(1) states an honorable discharge is a separation with honor.  The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.

	b.  Paragraph 1-5(2) states a general discharge is a separation under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.

14.  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 change a court-martial 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.  The evidence shows the applicant was convicted by a general court-martial of one specification each of committing indecent assault on five females.  He was dismissed from the U.S. Army on 17 August 2001 pursuant to the sentence of a general court-martial after the sentence was affirmed.

2.  He provided no evidence to show that his sentence was unjust.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent law and regulations with due process.  It appears all requirements of law and regulation were met and his rights were fully protected throughout the trial and appellate process.

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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

4.  His desire to have his dishonorable discharge (i.e., his dismissal) upgraded so he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other veterans' benefits.

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)                                         AR20120013651



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ABCMR Record of Proceedings (cont)                                         AR20120013651



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