IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140007558 


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, in effect, an upgrade of his bad conduct discharge.

2.  The applicant states:

* he wants the bad conduct discharge removed from his military records
* it has been over 17 years since his discharge
* he has been a proud and productive citizen and has raised a productive family
* he would like to allow his past to be his past and not be haunted by one mistake that could overshadow all of the good he did and continues to do

3.  The applicant 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.  The applicant enlisted in the Regular Army on 6 August 1986.  He completed training and was awarded military occupational specialty 11B (infantryman).  He remained on active duty through continuous reenlistments and he was promoted to the rank of staff sergeant effective 1 April 1992.

3.  On 9 March 1995, he was convicted by a general court-martial of:

* violating lawful general regulations by engaging in improper relationships with trainees (three specifications)
* oppression and maltreatment of subordinates on divers occasions (two specifications)
* sodomy
* adultery
* indecent acts (two specifications)

4.  He was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for 20 months, and a bad conduct discharge.  On 20 July 1995, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 8 months, forfeiture of all pay and allowances, and reduction to E-1.

5.  On 29 August 1996, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 24 February 1997, the convening authority ordered the bad conduct discharge duly executed.

7.  He was issued a bad conduct discharge on 15 April 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  He completed a total of 10 years, 1 month, and 27 days of creditable active service and accrued 192 days of lost time.

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

	a.  Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a 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.

9.  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.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the official military personnel file (OMPF).  Appendix B (Documents Authorized for Filing in the OMPF and/or Interactive Personnel Electronics Records Management System) states the list of documents required for filing in the OMPF is posted on the U.S. Army Human Resources Command website.  This website shows court-martial orders are filed in the performance folder of the OMPF when there is an approved finding of guilty on at least one specification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the bad conduct discharge from his military records.  By law, this Board cannot disturb the finality of a court-martial conviction.  Therefore, there is no basis to overturn his general court-martial conviction.

2.  His general court-martial order is properly filed in his military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.  Therefore, there is insufficient evidence on which to base removing it from his military records.

3.  The applicant contends it has been 17 years since his discharge; however, the passage of time is normally not a basis for upgrading a discharge.

4.  He contends he has been a proud and productive citizen since his discharge.  However, good post-service conduct alone is not a basis for changing a service characterization.

5.  A 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.

6.  His record of service during his last enlistment included one general court-martial conviction for numerous offenses and 192 days of time lost.  He was a staff sergeant.  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 service is insufficiently meritorious to warrant an honorable or a general discharge.

7.  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.

8.  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 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)                                         AR20140007558



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ABCMR Record of Proceedings (cont)                                         AR20140007558



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