IN THE CASE OF:	   

		BOARD DATE:	  11 April 2013

		DOCKET NUMBER:  AR20120017494 


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 dishonorable discharge to a more favorable discharge.

2.  The applicant states he was released for what the Army termed a "mental condition" and was confined to the disciplinary barracks at Fort Leavenworth, KS, for a period of 851 days.  He was charged with the rape of a white female enlisted member; however, it was consensual sex.  They were both using drugs and drinking.  He states he had a previous honorable discharge from active duty for training as a member of the U.S. Army Reserve (USAR).  He was recruited for the Regular Army without a high school education and was told by a recruiter that he could get a general education diploma once he entered active duty.  He believes his enlistment was fraudulent and improper.  He states many years have passed since his violation of military regulations.  He has and is going through drug and alcohol abuse counseling, coupled with stress and anxiety counseling provided by the Department of Veterans Affairs (VA).

3.  The applicant provides information release statements for the VA.

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 USAR on 20 November 1974 for a period of 6 years.  He was ordered to active duty for training on 14 March 1975.  He completed one-station unit training as a crawler tractor operator at Fort Leonard Wood, Missouri, on 11 July 1975 and was honorably released from active duty to the control of his USAR unit.

3.  On 14 January 1980, he was involuntarily ordered to active duty for a period of 20 months and 2 days due to unsatisfactory participation in the USAR.  He was transferred to Fort Leonard Wood where he was assigned to an engineer company.

4.  On 1 June 1980, nonjudicial punishment (NJP) was imposed against him for behaving with disrespect toward a superior noncommissioned officer.

5.  On 8 September 1980, NJP was imposed against him for failing to go to his place of duty.

6.  On 18 November 1980, he was convicted by a general court-martial of committing an indecent lewd and lascivious act with another, committing sodomy, and unlawful entry.  He was sentenced to confinement at hard labor for 12 months, total forfeiture of all pay and allowances, and a bad conduct discharge.   He was transferred to Fort Sill, Oklahoma, to serve his confinement.

7.  On 21 August 1981, he was restored to duty pending appellate review of his court-martial conviction and remained assigned to Fort Sill.

8.  On 8 June 1982, he was convicted pursuant to his pleas of guilty to all charges by a general court-martial of raping a female Soldier on 12 December 1981, unlawful entry with intent to commit rape and sodomy, committing sodomy by force and without consent, wrongful possession of marijuana, and wrongfully communicating a threat to injure his victim by saying to her, "You better shut up or I will kill you," "you don't want me to strangle you," "I will fix your face," or words to that effect.  He was sentenced to confinement at hard labor for 75 years, forfeiture of all pay and allowances, and a dishonorable discharge.  The convening authority approved the sentence on 23 July 1982 but directed that the execution of that portion of the sentence pertaining to confinement at hard labor in excess of confinement at hard labor for 9 years and 6 months is suspended for 12 months and, unless sooner vacated, would be remitted without further action.  He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth to serve his confinement.

9.  On 16 August 1983, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

10.  The applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on 12 April 1984.  He completed 1 year, 7 months, and 29 days of total active service and had 1,140 days of lost time due to imprisonment.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 provides that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  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.

	c.  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.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the bad conduct discharge appropriately characterizes the misconduct for which he was convicted.

2.  Accordingly, the type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

3.  The applicant's contentions have been noted and are found to lack merit.  The applicant was convicted of numerous offenses for which he pled guilty and he failed to show sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses and his undistinguished record of service.

4.  Accordingly, there appears to be no basis for clemency in his case or 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 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)                                         AR20120017494



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ABCMR Record of Proceedings (cont)                                         AR20120017494



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