RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 March 2006
      DOCKET NUMBER:  AR20050010433


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Peguine M. Taylor             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge (BCD)
be upgraded.

2.  The applicant states, in effect, that he has paid for his misjudgment.
He states that he has been discharged for over 20 years and has not once
been in trouble with the law or any other agency.  He claims that he has
raised two great boys, and that he is still married to the same wife that
was with him when he made his mistakes in judgment in 1986.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 27 January 1978.  He was trained in, awarded and
served in military occupational specialty (MOS) 16R (ADA Short Range
Gunnery Crewman) for 11 years and 11 months, and in MOS 11B (Infantryman)
for
5 years and 6 months.

2.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he
was promoted to staff sergeant (SSG) on 23 March 1981, and that this is the
highest rank he attained while serving on active duty.

3.  Item 5 (Overseas Service) of the applicant’s DA Form 2-1 shows that he
completed two overseas tours in Korea and one tour n Germany.  Item 9
(Awards, Decorations & Campaigns) shows he earned the following awards
during his tenure on active duty:  Air Assault Badge; Army Service Ribbon;
Overseas Service Ribbon (2); Army Achievement Medal (2); Army Good Conduct
Medal (3); Noncommissioned Officer Professional Development Ribbon; Expert
Qualification Badge with Rifle Bar; and Hand Grenade First Class
Qualification Badge.  Item 35 (Record of Assignments) shows that at the
time he committed the offenses that resulted in his court-martial
conviction and BCD, he was serving as a drill sergeant at Fort Bliss,
Texas.

4.  On 20 October 1986, pursuant to his pleas, a Special Court-Martial
(SPCM) convicted the applicant of two specifications of violating Article
134 of the Uniform Code of Military Justice (UCMJ) for wrongfully having
sexual intercourse with a trainee on or about 26 April 1986; and for
wrongfully having sexual intercourse with a trainee at divers times from 3
May 1986 to 16 June 1986.  The resultant sentence was a reduction to the
grade E-1 and a BCD.
5.  On 29 April 1987, the United States Army Court of Military Review,
after a review of the entire record in the applicant’s case, held that the
findings of guilty and the sentence as approved by the convening authority
were correct in law and fact.  Accordingly, it affirmed the guilty findings
and the sentence in the applicant’s case.

6.  On 17 August 1987, SPCM Order Number 126, issued by Headquarters,
United States Army Armor Center and Fort Knox, For Knox, Kentucky,
directed, Article 71c of the UCMJ having been complied with, that the BCD
portion of the sentence be duly executed.  On 17 September 1987, the
applicant was discharged accordingly.

7.  The separation document (DD Form 214) issued to the applicant on the
date of his separation, 17 September 1987, shows that he was separated with
a BCD under the provisions of chapter 3, Army Regulation 635-200, by reason
of
court-martial.  It also shows that at the time of his separation, he had
completed a total of 12 years and 3 months of active military service.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It provides that a Soldier will be given a BCD pursuant only to
an approved sentence of a general or special court-martial; and that the
appellate review must be completed and the findings and sentence of the
court-martial affirmed before the sentence is ordered duly executed.

10.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he has paid for his mistakes, and that
he has been a model citizen since his discharge were carefully considered.
However, these factors are not sufficiently mitigating to warrant granting
the requested relief.
2.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
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.

3.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that his service was not sufficiently
meritorious
to support clemency given the seriousness of the offenses for which he was
convicted.  His post service conduct and his commitment to family since his
discharge are admirable.  However, given he breeched the special trust
placed in him to train and mentor new Soldiers, it would be inappropriate
to upgrade his discharge at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WDP    __JLP  __  __PMT__  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.




            ____William D. Powers  __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050010433                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/02                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1987/09/17                              |
|DISCHARGE AUTHORITY     |AR 635-200 C3                           |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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