IN THE CASE OF:	   

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140003667 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2. The applicant states:

* he served 5 1/2 months of a 7-month sentence for an indecent assault incident that occurred while he was off duty
* it was clearly a case of "he said, she said" 
* he had to be court-martialed, resulting in his second adultery offense, for which he received a bad conduct discharge (BCD)
* he never had any problems with his character or work performance while on duty
* he has plenty of personal letters attesting to his character and actual personality
* he does not believe his discharge was unjust, but he believes it should be upgraded due to the outstanding dedication he put forth while on duty to represent the Army as well as his country

3. The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders
* twenty-one personal reference letters 


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 record shows he enlisted in the Regular Army on 28 March 2005.  The highest rank/paygrade that he attained was private (PV2)/E-2.

3.  The applicant's record contains General Court-Martial (GCM) Order Number 17, dated 7 September 2007, which shows he pled guilty and was found guilty of one specification of committing an indecent assault upon a person, not his wife, while she was unconscious with intent to gratify his sexual desires.

4.  The applicant was sentenced to be reduced to private (PV1)/E-1, to forfeit all pay and allowances, to be confined for a period of 7 months, and to be discharged from the U.S. Army with a bad conduct discharge (BCD).  The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.

5. The applicant's record contains and he submitted:

	a.  U.S. Army Court of Criminal Appeals, Notice of Court-Martial Order Correction, dated November 2007, which shows that GCM Order Number 17 was corrected by changing:

		(1)  the plea to Charge II to read:  "Plea:  Not Guilty of a violation of Article 120 but guilty to a violation of Article 134"; and 

		(2)  the finding of Charge II to read:  "Finding:  Guilty as amended."

	b.  twenty-one personal statements from various individuals, dated
26 April to 12 August 2007, which were originally submitted during his court-martial trial and which indicated that he was a highly-motivated, caring, thoughtful, and forgiving individual.
	c.  GCM Order Number 120, dated 24 April 2008.  This order shows, in pertinent part, that the applicant's sentence was approved and the BCD was ordered duly executed.

6.  The applicant's DD Form 214 shows he was discharged on 29 September 2008, under the provisions of Army Regulation 635-200, paragraph 3-10, by reason of court-martial - other.  This form further lists the applicant's character of service as bad conduct.

7.  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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 (BCD) states a Soldier will be given a 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.

2.  His reference letters are noteworthy.  However, they are not sufficiently mitigating to support a change in the narrative reason for his discharge.

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 was 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)                                         AR20140003667





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ABCMR Record of Proceedings (cont)                                         AR20140003667



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