IN THE CASE OF:	   

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015275 


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 upgrade of his bad conduct discharge (BCD) to an honorable discharge. 

2.  The applicant states, in effect:

* he did not even spend a year in confinement for the offenses for which he was convicted
* he was told his discharge would be revalidated
* he did not commit the offenses for which he was charged 
* he does not feel he was treated fairly
* he has not had any trouble in his life since his discharge

3.  The applicant provides 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 7 July 1981.  After completing one station unit training he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade held was specialist four/E-4.

3.  After assignments in Germany and at Fort Campbell, KY, the applicant was assigned to the 1st Battalion, 187th Infantry Regiment in Panama.

4.  General Court-Martial Order (GCMO) Number 15, dated 30 December 1987, issued by Headquarters, U.S. Army South, shows the applicant was convicted on 2 November 1987 in a general court-martial.  It states the following:

	a.  Charge I, Article 134, Uniform Code of Military Justice (UCMJ), four specifications:

* between 1 January 1986 and 20 March 1986, indecent acts with a minor, plea - guilty, finding - guilty
* between 1 February 1986 and 28 February 1986, wrongfully communicating a threat, plea - not guilty, finding - not guilty
* between 1 June 1986 and 30 November 1986, indecent acts with a minor, plea - guilty, finding - guilty
* on 7 July 1987, indecent acts with a minor, plea - not guilty, finding - not guilty

	b.  Charge II, Article 128, UCMJ, two specifications:

* between 1 February 1986 to 28 February 1986, assault with a means likely to produce death or grievous bodily harm, plea - not guilty, finding - not guilty
* on 18 June 1987, assault consummated by a battery on a child, plea - guilty, finding - guilty

	c.  The sentence shown is BCD, confinement for 36 months, and reduction to private/E-1.  The action taken by the convening authority was to approve 1 year confinement, BCD, and reduction to private/E-1.

5.  On 3 May 1988, the U.S. Army Court of Military Review issued a decision affirming the findings of guilty and the sentence in the applicant's case.

6.  On 20 October 1988, the U.S. Army Court of Military Appeals denied the applicant's petition to have his case reviewed.

7.  GCMO Number 621, dated 14 December 1988, issued by U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, showed Article 71c of the UCMJ had been complied with, and the sentence listed in GCMO Number 15, dated 30 December 1987, issued by Headquarters, U.S. Army South was affirmed.  The bad conduct discharge was directed to be duly executed.  On 20 January 1989, the applicant was discharged accordingly.

8.  His DD Form 214 shows his character of service as bad conduct.  The separation authority is paragraph 3-11 (Bad Conduct Discharge), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The narrative reason for separation is as a result of court-martial, other.  He completed 6 years and 9 months of active net creditable service, with 288 days lost time due to confinement.  He was awarded or authorized:

* Army Achievement Medal
* Army Good Conduct Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

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, in effect at the time, prescribes policy and procedures for enlisted separations.

	a.  Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.
   
   c.  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 requests his discharge be upgraded to honorable.  With respect to the characterization of service:

	a.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He pled guilty to and was found guilty of three of the six specifications charged.  He was given a bad conduct discharge pursuant to a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted given the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  All requirements of law and regulation were met and his rights were fully protected.  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.  Clemency is not warranted in this case.

2.  Based upon the foregoing, there is no basis upon which to grant the relief requested.

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)                                         AR20140015275





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015275



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1