IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130021230 


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 he is requesting clemency in regard to the charges of adultery and indecent acts with another.  Additionally, if there are any charges other than these two charges, they are on his record in error.  He is requesting clemency due to this event having happened over 10 years ago and is still a stigma in his life.  He wishes to finally close that chapter in his life and put it all behind him.  He feels that he was given this discharge simply to make precedence.  There is also a discrepancy on his record stating that he has an additional domestic violence charge which is incorrect.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Court-Martial Order Number 1
* U.S. Army Court of Criminal Appeals decision
* General Court-Martial Orders Number 269

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 enlisted in the Regular Army on 1 July 1999 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 305th Military Intelligence Battalion, Fort Huachuca, AZ. 

3.  General Court-Martial Order Number 1, issued by Headquarters, U.S. Army Intelligence Center, Fort Huachuca, AZ, on 31 January 2001, shows the applicant was arraigned at Fort Huachuca, AZ on the below offenses at a general court-martial that was adjudged on 3 August 2000:

* Charge I, Article 120, Plea: Not Guilty; Finding: Not Guilty of violation of Article 120 but Guilty of violation of Article 134; Specification: rape of private LT on or about 12 March 2000; Plea: Not Guilty; Finding: Not Guilty of rape, but Guilty of indecent acts with another
* Charge II, Article 14, Plea: Not Guilty; Finding: Guilty; Specification: on or about 12 March 200, wrongfully had sexual intercourse with a woman not his wife, Plea: Not Guilty; Finding: Guilty

4.  The court sentenced him to a reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and a bad conduct discharge.  He was confined.

5.  On 31 January 2001, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Staff Adjudicate General for the appellate review. 

6.  On 22 June 2001, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty.  The Court reassessed the sentence and notes an error in the forfeiture of pay and allowances.  The Court only affirmed so much of the sentence as provided for a bad conduct discharge, forfeiture of $600.00 pay per month for 1 month, and a reduction to the lowest enlisted grade. 

7.  On 24 October 2001, the U.S. Court of Appeal of the Armed Forces denied a petition for grant of review of the decision by the U.S. Army Court of Criminal Appeals.  

8.  General Court-Martial Order Number 2699, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 29 November 2001, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

10.  Accordingly, he was discharged from the Army on 3 April 2002.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  This form further shows the applicant's character of service as bad conduct and that he completed 2 years, 9 months, and 3 days of creditable military service.  

11.  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.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	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 3-10 provides 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of multiple criminal offenses related to indecent acts with another and wrongfully having sexual intercourse with a woman not his wife.  The court sentenced him to a reduction, forfeiture of pay and allowances, and a bad conduct discharge. 

2.  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 discharge appropriately characterized the misconduct for which the applicant was convicted.  

3.  The Army does not have nor did it ever have a policy wherein a characterization of service is upgraded due to passage of time.  Additionally, the ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction.  This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 

4.  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, clemency is not warranted in this case.  

5.  Based on his overall record of indiscipline, 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 either a general or an honorable 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)                                         AR20130021230





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ABCMR Record of Proceedings (cont)                                         AR20130021230



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