IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140012506


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, that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge was unjust because it was based on one isolated incident during his 21 years of honorable service.  He was always a good Soldier, held numerous leadership positions, and set the example by leading from the front and by doing what was right.  All of his misconduct was done during his off-duty time.  He should not have been given a BCD; he should have been forced to retire instead.

3.  The applicant provides the following documents:

* his Honorable Discharge Certificate, dated 10 December 1989
* a Certificate of Appreciation from the Commandant, 25th Infantry Division Noncommissioned Officer (NCO) Academy, dated 3 February 1982
* 2 letters of appreciation
* a letter of outstanding performance
* a Certificate of Achievement from the 10th Medical Battalion, dated         30 June 1988
* 3 letters requesting clemency (applicable to his Court-Martial)
* a five-page personal statement (applicable to his Court-Martial) 




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 initially enlisted in the Regular Army on 29 September 1967.  He completed his initial training requirements and was awarded military occupational specialty 91A (Medical Corpsman).  He served in several assignments and deployed to the Republic of Vietnam from 29 March 1968 to   22 March 1969.  He was honorable discharged and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 28 September 1970.  

3.  Following a break in service, he enlisted in the Regular Army on 16 January 1973.  He entered in the rank/grade of sergeant/E-5, served through a series of reenlistments in positions of increased responsibility, and eventually attained the rank of master sergeant (MSG)/E-8.  

4.  General Court-Martial (GCM) Order Number 23, published by Headquarters, U.S. Army Element, Combined Field Army (ROK/US), APO San Francisco on     3 August 1990, shows the applicant was convicted of violating the following Articles of the Uniform Code of Military Justice (UCMJ) for the reasons shown:

	a.  Article 134, one specification of wrongful purchase of duty-free goods in excess of personal needs in the value of $50,657.00, from 20 August 1989 to      2 January 1990, and six specifications of wrongful transfer of duty-free goods to someone not authorized to receive duty-free goods in the value of $50,657.00, from 20 August 1989 to 2 January 1990; and

	b.  Article 134, one specification of adultery from July 1989 to January 1990; and one specification of making a false statement under oath on 12 January 1990.  



5.  The following sentence was adjudged on 11 June 1990:

* Reduction to private/E-1
* Confinement for 10 years
* Bad conduct discharge

6.  A pretrial agreement suspended his period of confinement to 3 months for a period of 12 months from the date of action unless sooner vacated or remitted.  

7.  Orders 230-15, issued by the 509th Personnel Service Center, APO San Francisco on 23 August 1990, assigned him to the Personnel Control Facility, Fort Dix, New Jersey.

8.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 8 March 1991.  

9.  GCM Order 23, issued by Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey on 2 July 1991, shows the appropriate authority ordered the BCD to be executed.  

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 July 1991, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial.  This form also shows his character of service as "Bad Conduct."

11.  The applicant provides the following documents that attest to the character of his service prior to the incident that resulted in his BCD:

* his Honorable Discharge Certificate, dated 10 December 1989
* a Certificate of Appreciation from the Commandant, 25th infantry Division Noncommissioned Officer (NCO) Academy, dated 3 February 1982
* 2 letters of appreciation
* a letter of outstanding performance
* a Certificate of Achievement from the 10th Medical Battalion, dated         30 June 1988

12.  Army Regulation 635-200:

	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 3-11 provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and contentions are duly noted and were carefully considered.  He provides documents in support of his contentions that appear to show he performed his duties in the manner expected of a Solider and leader, and his performance was duly noted by his superiors at the time.  However, the character of his service is not sufficiently mitigating to absolve the misconduct that resulted in his discharge.

2.  He contends his discharge was based on one isolated incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

3.  The applicant's 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.

4.  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 and the reasons therefore were 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)                                         AR20140001502



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ABCMR Record of Proceedings (cont)                                         AR20140012506



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