IN THE CASE OF:	   

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015473 


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. 

2.  The applicant states:

	a.  while on leave in Germany, he met a woman in a club and they had sex in his car.
	
	b.  on another occasion, he met another woman and offered her a ride home and she accepted.  One thing led to another and they had consensual sex.  The documents state he had a weapon, but he did not.

	c.  since his discharge, his life has changed for the better.  He went to work, has a wife, kids, and a home.  He coaches little league football.

	d.  he didn't do the things he was charged with.  The sentence did not fit the crime.  He has been living with this for over 30 years and he would like to have his name cleared of these charges.           

	e.  since his conviction in 1980 and serving his time in prison, he has had a lot of remorse and is very sorry for what he did.  He was a good Soldier who just did a bad thing.




3.  The applicant provides:

* General court-martial order
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 27 February 1978 for a period of 3 years.  He completed his training and was awarded military occupational specialty 71L (administration specialist).  He attained the rank of specialist four.   

3.  On 13 September 1980, contrary to his pleas, he was convicted by a general court-martial of raping two females and committing assault upon one female by offering to do bodily harm with a knife.  He was sentenced to be reduced to the lowest enlisted grade, to be confined at hard labor for 3 years, to forfeit two-thirds pay per month for 3 years, and to be discharged from the service with a bad conduct discharge.  On 12 January 1981, the convening authority approved only so much of the sentence as provided for reduction to the lowest enlisted grade, a forfeiture of $330.00 pay for 3 years, confinement at hard labor for 3 years, and to be discharged from the service with a bad conduct discharge.

4.  On 4 February 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

5.  On 26 July 1982, the convening authority ordered the applicant's bad conduct discharge duly executed.  This order states the decision of the U.S. Army Court of Military Review, as to Additional Charge II (assault) and its specification, was reversed and the findings of guilty of that charge and specification were set aside and dismissed.

6.  He was discharged with a bad conduct discharge on 27 September 1982 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 2 years, 2 months, and 17 days of creditable active service with 826 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge 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.

	b.  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.

	c.  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.

8.  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 contention he didn't do the things he was charged with relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  He contends it has been over 30 years.  However, the passage of time is normally not a basis for upgrading a discharge.

3.  He points out that after his discharge he went to work, he has a wife, kids, and a home; he also coaches little league football.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  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 discharge appropriately characterizes the misconduct for which he was convicted.

5.  His record of service included one general court-martial conviction for raping two females and 826 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130015473



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ABCMR Record of Proceedings (cont)                                         AR20130015473



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