IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020512 


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 bad conduct discharge (BCD) to an honorable discharge
* a change of his narrative reason for separation from court-martial, other, to convenience of the Government

2.  He states:

	a.  He served continuous honorable active service until his extension of service for the Convenience of the Government.  He received two awards of the Army Good Conduct Medal.

	b.  The mitigating factors concerning his misconduct were drug and alcohol use.

	c.  He completed counseling and he is a better person.  

3.  He provides:

* DD Form 214 (Certificate of Release of Discharge from Active Duty)
* Honorable Discharge Certificate from the U.S. Army
* Document showing he attended the Alcohol and Drug Abuse Prevention and Control Program
* Certificate of Training showing he completed Stress Management
* Certificate of Training showing he completed Family Anger Control Training
* Certificate of Completion showing he completed the Army Community Service Volunteer Training Course
* two Certificates of Appreciation
* Certificate from the Arkansas Department of Human Services
* Memorandum, Subject: Reconsideration of Revocation of Security Clearance
* Memorandum, Subject: Notification of Consideration for Assignment to the White House Communication Agency
* Memorandum, Subject:  Letter of Commendation
* Orders for award of the Army Good Conduct Medal
* two Certificates of Achievement
* Certificate showing he completed the Primary Leadership Development Course
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* one page of a VA Rating Decision

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 18 July 1983 and was honorably discharged on 6 July 1987 for immediate reenlistment.

3.  He reenlisted on 7 July 1987 and was honorably discharged on 14 November 1989 for immediate reenlistment.

4.  He reenlisted on 15 November 1989 for a period of three years.  

5.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was awarded the second award of the Army Good Conduct Medal on 18 July 1989.  

6.  On 22 November 1991, the applicant was found guilty by a general court-martial of committing an indecent assault with intent to satisfy his lust or sexual desire.  He was sentenced to reduction to private/E-1, forfeiture of $750.00 pay per month for three years, confinement for three years, and a BCD.  

7.  On 28 April 1991, the convening authority approved the sentence and ordered it executed except for that part of the sentence extending to a BCD.  

8.  He provided a document which indicates he attended the Alcohol and Drug Abuse Prevention and Control Program at the Fort Lewis, WA, Regional Corrections Facility on 17 April 1992.  

9.  On 17 December 1992, the court-martial findings and sentence were affirmed.  The sentence and the BCD were ordered to be executed on 29 July 1993.

10.  The applicant was discharged on 3 December 1993 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed a total of 8 years, 3 months, and 24 days of creditable active service with over 700 days of lost time.  

11.  His DD Form 214 shows he was assigned a Separation Program Designator (SPD) code of "JJD."  

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  Army Regulation 635-200, 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.

14.  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.  

15.  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.

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows the SPD code of “JJD” as shown on the applicant’s DD Form 214 specifies the narrative reason as a result of court-martial, other and that the authority for discharge under this SPD code is “AR 635-200, paragraph 3-11."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served continuous honorable active service until his extension of service.  This is true, as confirmed by the entries on his DD Form 214 showing his several reenlistments.

2.  However, his service record shows he was convicted by a general court-martial of committing an indecent assault with intent to satisfy his lust or sexual desire during his last period of service.

3.  The evidence provided by the applicant shows he attended the Alcohol and Drug Abuse Prevention and Control Program in April 1992.  However, this does not mitigate the misconduct for which he was convicted.  

4.  The trial by court-martial was warranted by the gravity of the offense charged.  The 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.

5.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  His narrative reason for discharge was based on his court-martial conviction and there is no basis upon which this reason should be changed.  In view of the foregoing, there is no basis for granting relief 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)                                         AR20120020512





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ABCMR Record of Proceedings (cont)                                         AR20120020512



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