IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130014230 


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).

2.  He states that it is hard living with the fact that he lost a life he lived for every day because his ex-wife had another man's baby while he was deployed to Desert Storm.  He met someone else and they called it adultery.  He served his country proudly and wants to die proudly.

3.  He provides no additional 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.  Having prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 26 February 1988.  He served in a variety of stateside and overseas assignments and deployed to Southwest Asia from 23 August 1990 to 21 March 1991.  The highest rank/grade he attained while serving on active duty was specialist/E-4.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  General Court-Martial (GCM) Order Number 18, published by Headquarters, 6th Infantry Division (Light) and United States Army Garrison, AK, Fort Wainwright, AK, on 16 June 1994, shows the applicant was found guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ) for the reasons shown:

	a.  Article 134, two specifications of adultery; and

	b.  Article 125, one specification of forcible sodomy.

4.  The following sentence was adjudged on 11 December 1993:

* Reduction to private/E-1
* Bad conduct discharge

5.  The sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

6.  The U.S. Army Court of Criminal Appeals upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

7.  GCM Order 17, issued by Headquarters, U.S. Army Alaska, Fort Richardson, AK, on 29 September 1995, shows the appropriate authority ordered the BCD to be duly executed.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 May 1998 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as a result of court-martial.  This form also shows his character of service as "Bad Conduct."

9.  Army Regulation 635-200:

	a.  Paragraph 3-7a, provides 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, provides 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.

	c.  Paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

	d.  Paragraph 3-11, provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request is duly noted.  However, it is not sufficiently mitigating to absolve his misconduct during his period of service.

2.  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.

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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted 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)                                         AR20130014230





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ABCMR Record of Proceedings (cont)                                         AR20130014230



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