IN THE CASE OF:	   

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140012876 


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 an upgrade of his dishonorable discharge.

2.  The applicant states the investigation was not thorough.  His pregnant wife had just left that evening returning to the United States with their child.  He was hanging out with the guys, seven of them.  Five of the seven were accused of raping a German girl.  He and one of the guys did not do anything.  During trial, this was not brought up.  The doctors' statements indicated four different semen samples in the victim.  He was not party to the rape.  He pled guilty to get a lower sentence in an American military facility because he was afraid of the other option which was incarceration with a longer sentence in a German prison. 

3.  The applicant provides his DD Form 214 (Report of Separation 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 2 May 1975 and he held military occupational specialty 17B (Field Artillery Radar Crewmember).  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  His records further show, while still in training at Fort Sill, OK, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 14 October 1975, failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL) from 4 to 5 October 1975
* 8 December 1975, assaulting another Soldier by kicking him on the arms and body

4.  He was issued permanent change of station orders to proceed to Germany and he served in Germany from 16 January 1976 to 17 February 1977.  However, on 14 January 1976, prior to arrival in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ for missing movement on 7 January 1976 and being AWOL from 7 to 13 January 1976.

5.  On 18 February 1977, consistent with his pleas, he was convicted by a general court-martial of one specification of raping a German national, one specification of committing sodomy against a German national by force and without her consent, and one specification of stealing currency from the German national.  The court sentenced him to a reduction to the lowest enlisted grade, confinement at hard labor for 15 years, a forfeiture of all pay and allowances, and a dishonorable discharge.

6.  On 24 March 1977, the convening authority approved a lesser sentence of a dishonorable discharge, confinement at hard labor for 6 years, forfeiture of all pay and allowances, and a reduction to E-1, and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 10 August 1977, the U.S. Army Court of Military Review, having found the approved findings of guilty and the sentence correct in law and fact and, having determined on the basis of the entire record, that they should be approved, the court affirmed the approved findings of guilty and the sentence.
8.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1246, dated 19 December 1977, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge sentence executed. 

9.  The applicant was discharged from the Army on 7 March 1978.  His DD Form 214 shows he was discharged in accordance with paragraph 11-1 of Army Regulation 635-200 (Enlisted Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 1 year, 6 months, and 25 days (including excess leave) of creditable military service.  He had 151 days of lost time. 

10.  Army Regulation 635-200 governs the separation of enlisted personnel. 

	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 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that a Soldier will be given a bad conduct discharge 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.

11.  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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  His contention regarding the thoroughness of the investigation is rejected.  He provides no evidence to support such contention.  Likewise, his contention that he was not party to the rape is also rejected.  He was not only convicted of rape but also of forcible sodomy and theft.  In any case, such contention was presumably, or should have been, raised and/or considered during the court-martial proceedings or during the appeal process.  That would have been the appropriate forum to raise such issues.  

4.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20140012876





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ABCMR Record of Proceedings (cont)                                         AR20140012876



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