IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140021063 


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 the bad conduct discharge (BCD) he was issued on 4 October 1984.

2. The applicant states:

	a.  The incident that led to the issuance of the BCD was the result of a bad decision he made while dealing with alcoholism and depression.

	b.  At the time the incident transpired, he was in the company of a female he did not personally know and things happened that he is not proud of today.

	c.  He was charged with rape and robbery and as a result, he was court-martialed.  

	d.  He was acquitted of both charges and found guilty of carnal knowledge, which means statutory rape.

	e.  He has straightened his life up, abstains from the use of alcohol, and is living a sober and productive life.  

	f.  He is currently in a Compensated Work Therapy program at the Department of Veterans Affairs Hospital.  To attest to his character he has submitted letters of support from his current supervisors. 


3.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 214 (Report of Separation from Active Duty)
* a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Services of the United States)
* two character reference statements
* a self-authored statement 

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 (RA) on 20 December 1974 and served until he was honorably released from active duty on 9 December 1977.

3.  On 2 June 1982, he again enlisted in the RA.

4.  The applicant's record contains General Court-Martial (GCM) Order Number 16, dated 23 May 1983, which shows he pled not guilty, but was found guilty of committing the offense of carnal knowledge with a female under the age of 17.

5.  The applicant was sentenced to reduction to private/pay grade E-1, a forfeiture of all pay and allowances, confinement for a period of 6 months, and the issuance of a BCD.  The sentence was approved and except for the part of the sentence extending to a BCD was executed.

6.  On 4 October 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 3, by reason of court-martial with a BCD.  His DD Form 214 shows during this period of service he completed 1 year, 7 months, and 15 days of net active service.  He also had lost time from 16 November 1982 to 31 July 1983.
7.  He submitted two character reference statements from his supervisors who indicate the applicant is a hardworking considerate person who has worked in many areas of the VA hospital.  He works well with other employees and has a positive influence on them.

8.  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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 (BCD) states a Soldier will be given a BCD 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	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.  

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his discharge should be upgraded because he was dealing with alcoholism and depression at the time of the incident that led to his discharge.  He states he is now a sober productive member of society.

2.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offense for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant was convicted.
3.  His post-service conduct is commendable.  However, it does not mitigate the serious misconduct that led to his court-martial conviction.

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 was appropriate. 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)                                         AR20140021063



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ABCMR Record of Proceedings (cont)                                         AR20140021063



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