PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           20 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001056845

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paula Mokulis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his bad conduct discharge be upgraded. He states, in effect, that he did not commit the crimes he was accused of and maintains that his military records show that his "conduct was in good standards."  He notes that it has been 20 years since his discharge and feels that to continue to stigmatize him with a bad conduct discharge "will be a great error." He submits no evidence in support of his request but does state that he would submit "evidence" at a later date.

3.  He entered active duty on 15 June 1977 and was trained as a radio teletype operator.  In February 1978 he was assigned to an Air Defense Artillery unit in Germany.

4.  In January 1979 the applicant received a performance evaluation report for the period February 1978 through December 1978 which noted the applicant was an "outstanding soldier in all respects."  He received a combined evaluation score of 122.5 out of a possible 125.

5.  Between January and August 1979 the applicant was punished three times under Article 15 of the UCMJ (Uniform Code of Military Justice).  His offenses included sleeping while on sentinel duty and failing to go to his appointed place of duty.  He was ultimately reduced from pay grade E-4 to pay grade E-2 as a result of punishments associated with the UCMJ actions.

6.  In November 1979 he was advanced to pay grade E-3.

7.  In July 1980 the applicant was convicted by a general court-martial of indecent assault (Article 134) and consensual sodomy (Article 125).  A 3d Infantry Division court-martial sentenced the applicant to a bad conduct discharge (BCD), with no confinement or restriction, on 22 July 1980.  He requested voluntary excess leave on 29 July 1980.  The General Court-Martial Convening Authority (GCMCA) granted excess leave on 30 July 1980.  The applicant was reassigned from Germany to the Separation Transfer Point at Fort Dix, New Jersey for separation processing.  The reassignment orders indicated the applicant’s “date of relief from active duty (unless changed or rescinded)” would be 8 August 1980. Fort Dix discharged the applicant on 7 August 1980, consistent with those orders. It was not until 25 June 1982, however, that the Secretary of the Army issued a final order in the court-martial, affirming the findings and approving the BCD and ordering it executed.  

8.  The maximum punishment for conviction under Article 134 and/or 125 is a bad conduct discharge, 5 years confinement, reduction to the lowest grade, and total forfeiture of pay and allowances.

9.  Army Regulation 635-200 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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.

10.  Army Regulation 630-5, which establishes the policies and provisions for the administration of the Army’s leave program, states soldiers who have been sentenced by court-martial to a dismissal or punitive discharge, but whose sentence has not yet been approved, may submit a written request for voluntary excess leave.  The requested leave may be approved if the GCMCA believes that the best interest of the Service would be served by granting the request.  Soldiers in an excess leave status are not entitled to pay and allowances, accrual of leave, or physical disability retirement should they become disabled while in an excess leave status.

11.  Army Regulation 635-200, chapter 11, then in effect, established the provisions for separating soldiers with dishonorable and bad conduct discharges. It stated that a soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed.

CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, which confirms that his conviction by a general court-martial and the resulting sentence to a BCD was in error or unjust.  Nor has he provided any evidence that his conduct and contributions to society and his community since his discharge have been so meritorious so as to warrant an upgrade of his discharge based on post service conduct.

2.  The applicant's contention that his conduct while in the military met acceptable standards, and as such should serve as a basis to justify upgrading his discharge, is without foundation.  The Board notes that while the applicant's first year of military service was outstanding, as noted in his performance evaluation report, he was subsequently punished on three separate occasions under Article 15 of the UCMJ and was reduced two pay grades, in addition to his conviction by a general court-martial.

3.  Notwithstanding the above conclusions, the Board notes, as a matter of law, the applicant’s 7 August 1980 discharge was premature.  A soldier pending final action on a court-martial sentence that includes a punitive discharge may not be separated from the service until final action is taken by an appropriate convening authority.  The applicant should have remained in an excess leave status through 25 June 1982, the date his sentence was affirmed and ordered to be duly executed, and then been discharged.
4.  Although the Board does not generally act on issues which were not part of an applicant’s original request the Board, under the circumstances, and as a matter of law, in this case it would be appropriate to void the applicant’s 1980 discharge, continue him in an excess leave status and then execute his bad conduct discharge effective 26 June 1982, the day following the affirmation of his sentence.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the action discharging the individual concerned from active duty on 7 August 1980 is void and of no force or effect;

b.  by continuing the applicant in an excess leave status; and

c.  by executing his bad conduct discharge on 26 June 1982.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RJW__  __KWL__  __PM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2001056845	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010920	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.