IN THE CASE OF:
BOARD DATE: 29 January 2015
DOCKET NUMBER: AR20140009799
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 request that his bad conduct discharge (BCD) be upgraded to general under honorable conditions (GD).
2. The applicant states in the 17 years since his separation he has stayed married, raised two children, and driven a truck to support his family. He has learned his lesson and has not done the things that resulted in his court-martial since his discharge. He has been a contributor to society and will continue to be one. He is requesting the upgrade due to developing major medical problems.
3. The applicant provides no supporting documentation.
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 21 May 1982 with continuous reenlistments.
3. On 21 November 1988, he received nonjudicial punishment for theft of six candy bars from the Army Exchange.
4. In March 1997, the applicant, a military police sergeant, was charged with five specifications of indecent assault upon a female Soldier, five specifications of maltreatment of a subordinate, three specifications of adultery, one specification of oral and anal sodomy, and one specification of wrongfully endeavoring to influence the statement of another. The charges were referred to a special court-martial.
5. On 24 March 1997, pursuant to a pretrial agreement in which the convening authority agreed that punishment in excess of a BCD, confinement for 45 days, forfeiture of 2/3 pay per month for six months, and reduction to the grade of Private E1, and the five specifications of indecent assault would be dismissed. The applicant pled guilty to the remaining charges and specifications. The military judge accepted the pleas and sentenced the applicant to confinement for three months, reduction to private
E-1, and a BCD.
6. Although the military judge did not adjudge forfeitures, pursuant to Article 57a, Uniform Code of Military Justice (UCMJ), the accused was also required to forfeit 2/3 pay per month during the period of his confinement. The forfeiture of $600 pay per month during the period of confinement as required by Article 58(b), UCMJ, was deferred on 9 April 1997 and terminated on 22 May 1997.
7. On 9 April 1997, the convening authority deferred the forfeitures and approved the remainder of the sentence and directed that, except for the BCD, the sentence be executed.
8. Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed and the applicant was accordingly discharged on 15 May 1998 with a BCD. He had 15 years, 10 months, and 17 days of creditable service with 36 days of lost time.
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 635-200 sets forth the basic authority for the separation of enlisted personnel, paragraph 3-7b, states 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 applicant has not provided any evidence related to his post-service conduct that would demonstrate actions or conduct so meritorious as to outweigh the seriousness of the offenses that resulted in his discharge.
2. The applicant's separation was accomplished in compliance with applicable regulations and the UCMJ. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the 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.
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