IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130001186 


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 under other than honorable conditions discharge. 

2.  The applicant states he believes the records to be unjust or in error because he completed 4 years and 12 days of service.  Although he was convicted by a court-martial, he was found not guilty of the top charge.  He was found guilty of adultery.  He was young at the time, away from his newlywed wife, in Germany. He admits that his conduct was unbecoming; however, he was going through a lot of stress then.   He is older and wiser now and fully understands what it means to be responsible for his own action.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Veterans Health Center printout

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 was born on XX December 1964 and enlisted in the Regular Army at 20 years of age on 26 April 1984.  He held military occupational specialty 51K (Plumber).  

3.  He served in Germany from February 1986 to September 1987.  He was awarded or authorized the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4.  On 10 September 1987, in Germany, at a general court-martial, he was found not guilty of the charge of rape but guilty of the charge of adultery.  As such, he was convicted by the general court-martial of one specification of adultery.  The court sentenced him to a forfeiture of $300 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge. 

5.  On 13 November 1987, the convening authority approved the sentence and except for that part of the bad conduct discharge the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 22 February 1988, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 500, dated 28 July 1988, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

8.  On 8 March 1988, the Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) granted him clemency and approved an upgrade of his character of service from bad conduct to under other than honorable conditions.

9.  He was accordingly discharged from the Army on 16 August 1988.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) as a result of court-martial.  This form further shows his character of service as under other than honorable conditions.  He completed a total of 4 year and 12 days of creditable military service and he had lost time from 10 September to 17 December 1987. 

10.  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.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b of Army Regulation 635-200 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 evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final approved discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  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.  The applicant has already received clemency and his discharge had already been upgraded.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, he is not entitled to another upgrade of his discharge. 

3.  The applicant was 20 years of age when he enlisted and 23 years of age when he was committed his offense and was convicted by a court-martial; there is no evidence he was any less mature than other Soldiers who successfully completed their service obligations.  Likewise, there is no evidence that his actions were a result of his age. 

4.  Based on his record of serious misconduct, 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 upgraded 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)                                         AR20130001186





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ABCMR Record of Proceedings (cont)                                         AR20130001186



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