IN THE CASE OF: 

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130019067 


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.  The applicant states:

* he became depressed and made bad decisions after entering the military and he is appealing his discharge in the event he is eligible to reenter the military in some capacity
* he has conquered his depression and bad decision-making
* although it may not look like it on paper, but he was a good Soldier and he loved being a Soldier and desires another opportunity
* he had manic depression while in the military
* he joined the military straight from college where he was basically attending just for sports
* sports seemed to be the only thing taking his mind off death or trying to die
* he was depressed all the time and blamed himself for his cousin's passing
* he rose to the rank of E-4 quickly and he was an honor graduate
* his marriage was not doing well and depression seeped back into his life
* his wife finally left him
* there were two incidents followed by a period of being absent without leave (AWOL) that he deeply regrets
* he and another Soldier had to be separated after an argument and he later had to stand before his platoon to apologize
* unbeknown to him, he brought an underage female into his home
* he admitted to all wrongdoing and was charged with carnal knowledge
* his military career was derailed due to his own fault, but he has conquered that giant in his life
* he has gained the courage and humility to put his life back together

3.  The applicant provides self-authored statements.

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 6 March 1990.

3.  General Court-Martial Order Number 3, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX, dated 7 January 1993, shows that pursuant to his pleas he was found guilty of:

* committing carnal knowledge with a female under the age of 16 years on or about 20 June 1992
* taking indecent liberties with a female under the age of 16 years on or about 20 June 1992
* being AWOL on or about 20 October until 17 November 1992

4.  He was sentenced to a forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 9 months, and a BCD.

5.  On 6 April 1993, the U.S. Army Court of Military Review affirmed the findings and sentence.

6.  On 25 June 1993, the U.S. Court of Military Appeals denied his request for a review of the decision of the U.S. Army Court of Military Review.

7.  On 3 August 1993, Headquarters, 7th Infantry Division (Light), Fort Ord, CA, issued General Court-Martial Order Number 61 ordering the execution of the affirmed sentence.

8.  On 29 September 1993, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV (Dishonorable and BCD).

9.  The applicant provides self-authored statements about events leading to his discharge.

10.  His service medical records are not available for review and he does not provide any medical documentation confirming a diagnosis of depression.

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

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or 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.

	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.

12.  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 evidence of record does not support the applicant's request for an upgrade of his BCD.

2.  He was convicted of carnal knowledge, taking indecent liberties with a minor, and being AWOL.  His conviction and sentence by a general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given the BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

3.  His medical records are not available and he fails to provide any evidence he suffered from depression.  However, even if such evidence were available, it would not mitigate the seriousness of the offenses for which he was tried and convicted and, in any case, could have been raised during the court-martial/appellate process.

4.  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)                                         AR20130019067



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ABCMR Record of Proceedings (cont)                                         AR20130019067



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