BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140010621 


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 correction of his record to:

* expunge his Special Court-Martial (SPCM)
* upgrade his Bad Conduct Discharge (BCD) to an honorable discharge
* amend item 27 (Reenlistment (RE) Code) of his DD Form 214 to show he received an RE Code of "1" or "3"

2.  The applicant also requests he be sent a copy of his record of trial.  

3.  The applicant states his SPCM was held in Mainz, Germany in October 1981.  He was originally charged with one count of lewd and lascivious acts with a female under the age of 16 and two counts of communicating indecent and obscene language to a female under 16.  The charges were preferred in April 1981 and his pretrial hearing was in July 1981.

	a.  During the pretrial hearing, the girl was questioned by the prosecution and defense attorneys and answered each question with, "I don't know… I don't remember… I'm not sure."  The prosecution and defense attorneys both indicated the case would most likely not go to trial because the girl could not answer any of the questions presented.  Additionally, the major in charge of his pretrial hearing was a very good friend of the girl's mother.  Two and a half months later, the applicant finally received the decision that there was enough evidence to conduct a SPCM.  

	b.  His case went forward to an SPCM and he was facing 16 years' incarceration, a reduction to private (PVT)/E-1, forfeiture of pay and allowance for 
16 years, and a dishonorable discharge.  His attorney called him into her office about a week before the trial and stated the prosecuting attorney had offered a plea bargain of only 2 years' incarceration.  His lawyer got a large book and asked him 4 or 5 questions, closed the book, and told him he could not plead guilty because he did not answer the questions correctly and, therefore, the judge would not allow the plea.

	c.  In October 1981, he went to trial.  The judge was a lieutenant colonel (LTC) and the jury was made up of three officers and two noncommissioned officers (NCO).  When the girl took the stand and the prosecutor began asking her questions, she answered all of them almost word for word as it had been written on the original investigation paper.  However, 3 months earlier, during the pretrial hearing, she had been unable to answer any of the questions presented.  When the applicant pointed this out to his attorney, she told him not to say anything because the girl was already going through enough and would become confused.  Furthermore, even though his wife was the only one present when he was supposed to have molested this girl, she was not permitted to testify on his behalf.  They said if she was permitted to testify, she would lie under oath to protect him.  

	d.  While the court was adjourned another attorney, a German national, approached him and stated that he had been there throughout the entire trial and then asked him if he was aware he was being railroaded.  This attorney also stated that he wished he was the applicant's attorney because he would have stopped the entire case at pre-trial.  

	e.  When the recess was over he was directed to report to the commander of the jury, a LTC whom the applicant had seen visiting the girl's mother and stepfather on numerous occasions.  The LTC informed him that "we the jury cannot find you guilty of the charges as they were written, so we the jury rewrote the charge to read, ‘simple assault and battery.’  We also decided since we were here, that you would receive, 1 year of hard labor, reduction to E-1, forfeiture of half your pay per month for 12 months, and you are to receive a bad-conduct discharge."  When the applicant asked the LTC what he meant, he told the applicant that the jury felt he had touched this girl between her shoulder and neck without her permission.  

	f.  He is aware that the Uniform Code of Military Justice (UCMJ) allows a jury to rewrite the charges; however, he is also aware that, once rewritten, the charges must be presented to the Soldier's company commander.  The company commander then decides if the new charge will be handled by company or field grade nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ.  If the commander feels the charges still warrant an SPCM, he sends the charges to the prosecutor and the prosecutor takes it from there.  However, being that the new charges were for simple assault and battery, a misdemeanor, the issue should not have gone any higher than a brigade level, field grade NJP under the provisions of Article 15 of the UCMJ.

	g.  Furthermore, he never received his half pay and allowance for the 7 months he was incarcerated and he did not receive a copy of his record of trial. 

4.  The applicant provides a self-authored statement and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 28 April 1977 and held military occupational specialty 63B (Light Wheeled Vehicle/Power Generation Mechanic). The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On 10 October 1978, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 5 September 1978 to 
8 September 1978.

4.  On 14 November 1978, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying the order of an NCO on 1 November 1978 and failing to report to his appointed place of duty on 3 November 1978.

5.  General Court-Martial (GCM) Order Number 1, issued by Headquarters, 8th Infantry Division, Germany on 12 January 1982, states the applicant was 
arraigned and tried before a GCM, pursuant to Court-Martial Convening Order Number 284, issued by Headquarters, 8th Infantry Division, Germany on             3 September 1981, as amended by Court-Martial Convening Order Number 304, issued by Headquarters, 8th Infantry Division, Germany on 6 October 1981.  GCM Order Number 1 shows:

	a.  He was charged with a single charge of violating Article 134 of the UCMJ (a General Article - which includes many offenses including child endangerment and communicating indecent and obscene language to a child under the age of 16 years).  He was found not guilty of Article 134, but guilty of Article 128 (assault consummated by battery upon a child under the age of 16).

		(1)  Specification 1 stated the applicant did, on or about 8 June 1981, take improper and indecent liberties with the body on Lxxxxx Gxxxx, a female under the age of 16 years, by lifting her nightgown, and rubbing her chest, legs, and between her legs with the intent to gratify his own passions.  He was found guilty of specification 1, except for the words "take improper and indecent liberties with the body on Mxxxxx Cxxxx, a female under the age of 16 years, by rubbing his hands between her legs with the intent to gratify passions of the applicant."  These words were substituted for the words, "unlawfully touch Mxxxxx Cxxxx, a child under the age of 16 years, by lifting her nightgown and rubbing her chest with his hand."

		(2)  Specification 2 stated that the applicant did on or about 5 July 1981, take improper and indecent liberties with the body on Mxxxxx Cxxxx, a female under the age of 16 years, by rubbing his hands between her legs with the intent to gratify passions of the applicant.  He was found not guilty of specification 2.

	b.  He was charged with the additional charge of violating Article 134 of the UCMJ in that the applicant did, on or about 13 July 1981, in writing, communicate to Mxxxxx Cxxxx, a child under the age of 16 years, certain indecent and obscene language, to wit:  "If you love me and want to see me on Wednesday then meet me in the lobby of building 8 between 7:45 and 8:00 AM and from there we will go on up to my apartment and we will have about six hours to do whatever we decide to do."  He was found guilty of the additional charge.

	c.  He was sentenced to forfeiture of one-half of one month's pay for one year, confinement at hard labor for one year, and to be discharged with a BCD.  His sentence was adjudged on 15 October 1981.

	d.  On 12 January 1982, only so much of the sentence as provides for a BCD, confinement at hard labor for 1 year, and forfeiture of $250.00 per month for       1 year was approved.  The forfeitures were ordered to be applied to pay becoming due after 12 January 1982.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.  

6.  GCM Order Number 181, issued by Headquarters, Combined Arms Center, Fort Leavenworth, KS on 13 May 1982, ordered the unexecuted portion of his sentence to confinement be remitted, effective 19 May 1982.

7.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was placed on excess leave after the remittance of his confinement.  

8.  His DD Form 214 shows he was discharged with a BCD on 28 June 1983, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-1 as a result of court-martial, and that he received the separation code of "JJD" and a reenlistment code of "RE-4."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. 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 states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

10.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  The RE code "RE-4" applies to persons who have a nonwaivable disqualification.  

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JJD is the appropriate code to assign to Soldiers separated under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial.  The SPD/RE Code Cross Reference Table indicates that "RE-4" is the proper code to assign members separated with SPD code "JJD."

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.

13.  The ABCMR is not a records custodian; the National Personnel Records Center (NPRC) maintains control of military personnel records, now referred to as the Official Military Personnel File (OMPF).  The OMPFs held at NPRC are administrative records containing information about the subject's military service history.  Many OMPFs contain both personnel and former active duty health records, but the service branches discontinued retiring the health record portion to the NPRC in the 1990s.  On 16 October 1992, the Army began retiring its former members' health records to the Department of Veterans Affairs (VA).  The VA, Records Management Center, in St. Louis, MO, became responsible for maintaining active duty health records and managing their whereabouts when on loan within the VA.  To obtain a copy of the personnel portion of the OMPF, applicants may mail or fax a signed and dated request to NPRC.  Applicants should be sure to use the address specified by the instructions on the Standard Form (SF) 180 (Request Pertaining to Military Records).  Requests may be faxed to (314) 801-9195 or mailed to the following address:  National Personnel Records Center, Military Personnel Records, 1 Archives Drive, St. Louis, MO  63138.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected by expunging his SPCM and his DD Form 214 should be corrected to show his character of service was honorable and he received a more desirable RE code.  He contends he was "railroaded" during his trial.

2.  The applicant has not provided sufficient evidence and his records do not contain any evidence supporting his contentions.  

3.  The evidence of records shows he violated Articles 128 and 134 of the UCMJ in that he committed assault consummated by a battery upon a child under the age of 16 and that he communicated indecent and obscene language to a child under 16.  For these offenses, the applicant was tried and convicted by a general court-martial.

4.  Trial by 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 characterizes the misconduct for which the applicant was convicted.  

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited, meaning the Board does not have the authority to expunge the GCM from his record.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

6.  After review of the applicant’s entire record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted, it is clear that his service was not satisfactory, thus did not meet the criterion for an honorable or under honorable conditions (general) discharge.  Furthermore, based on his reason for discharge, the applicant's character of service and RE code are appropriately shown on his separation document. 

7.  The ABCMR is not the custodian of service personnel or medical records, and is, therefore, unable to provide the requested copy of the applicant's record of trial.

8.  Based on the foregoing, there is insufficient evidence to grant the 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 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)                                         AR20140010621





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ABCMR Record of Proceedings (cont)                                         AR20140010621



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