BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001213 


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 bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant, in effect, states:

	a.  his BCD was too harsh based on his committed offense;

	b.  he served in the military for seven years with no record of misconduct; he was well respected by his peers and subordinates; and he was trusted by his superiors.  He earned maximum scores on the Army Physical Fitness Test (APFT) and in all other Army training and schools;

	c.  he naively assaulted a child by spanking her for recalcitrant behavior
causing her undue harm and noticeable bruising on her skin;

	e.  while he never had any parenting classes, in hindsight, such training would have proven to be beneficial to all involved, especially the child;

	f.  he subsequently completed extensive parenting and behavior modification courses following the incident;

	g. he was instructed by his commander not to communicate with him during pretrial and he was further ostracized from unit activities and opportunities, resulting in a chain reaction affecting his relationship with his friends, fellow-Soldiers, and family;
	h.  having no one else to turn to for guidance, being deeply depressed, he contacted him only to advise of his relationship problems;

	g.  he was encouraged by military and civilian counsel to plead guilty in lieu of court martial while not understanding anything; 

	i.  while he feels he could have been rehabilitated, it is his belief the court never tried to understand what happened or his behavior, but instead only thought of him as another criminal who inadvertently joined the Army; and

	j.  the BCD was too harsh in light of his rehabilitation considering he:

* is a registered nurse with a master’s degree in nursing
* is a certified wound care specialist
* is a homeowner with 3 children (all successful) and married to his wife of 25 years
* has not been in any other legal trouble since his military service
* is a very successful, accomplished, and upstanding citizen

3.  The applicant provides no additional documents.

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.  During the period in question, the applicant enlisted in the Regular Army on 11 February 1987.  He was trained in, awarded, and served in military occupational specialty 91C (Practical Nurse).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms in Item 18 (Appointments & Reductions) he was promoted to sergeant (SGT/E-5) on 1 December 1991.  This was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 14 June 1994.

4.  Headquarters, 7th Infantry Division, Fort Lewis, Washington, General Court-Martial (GCM) Order Number 5, dated 14 June 1994, shows the applicant, pursuant to his pleas, was found guilty of the following charges for violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 128 – from 23 March until 1 July 1993, at diverse times, unlawfully striking a child under the age of 16 years about the body with his fists, shoes, an electric extension cord, switches, board, and belt
* Article 134 - (2 specifications) – on 27 June and 1 July 1993, wrongfully and knowingly restraining a child in violation of the Revised Code of Washington, Section 9A.40.040(1).

5.  The resulting sentence imposed by the military judge was a reduction to PV1/E-1, forfeiture of $500.00 pay per month for 30 months, confinement for 
30 months, and a dishonorable discharge.

6.  The General Court-Martial Convening Authority (GCMCA) approved the sentence and ordered that it be executed with the exception of the portion that provided for the dishonorable discharge.  He also ordered that the execution of that part of the sentence extending to confinement suspended for 24 months unless sooner vacated.  The service of the sentence to confinement was deferred on 24 February 1994 and the deferment ended on 14 June 1994.

7.  On 1 May 1996, GCM Order Number 47, issued by Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, directed that, Article 71c of the UCMJ having been complied with, the dishonorable discharge portion of the sentence be duly executed.  On 20 June 1996, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, chapter 3, as a result of court-martial.  He completed a total of 9 years, 4 months, and 10 days of creditable active military service.  His DD Form 214 shows he received a BCD.  The available evidence does not show the basis for that entry.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or BCD.  It stipulates, that a Soldier will be given a dishonorable discharge or 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 dishonorable discharge or BCD portion of the sentence is ordered duly executed.

   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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
   
   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.

10.  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 contends the BCD he received was too harsh and should be upgraded to an HD.  He also contends that he could have been rehabilitated in light of his post service conduct and accomplishments.  While he provides no evidence of his post service conduct or accomplishments, these elements, as he claims, are noted.


2.  The evidence of record confirms a GCM sentenced the applicant to a dishonorable discharge.  After completion of the appellate process, his sentence was affirmed by the appropriate appellate court, and his dishonorable discharge was ordered executed.  However, his characterization of service was listed as “BCD” on his DD Form 214 and there are no documents on file to explain why this occurred.  Based on the sentence he received, his DD Form 214 should be corrected to show his dishonorable discharge, however it is this Board's policy that an applicant will not be made worse off than when he or she applied to the Board.  Therefore, the BCD currently listed on his DD Form 214 will remain.

3.  The applicant’s conviction was effected in accordance with applicable law and regulations.  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.  Given the applicant's undistinguished record of service and 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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20150001213





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ABCMR Record of Proceedings (cont)                                         AR20150001213



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