IN THE CASE OF: BOARD DATE: 18 June 2009 DOCKET NUMBER: AR20090003463 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 that his bad conduct discharge (BCD) be upgraded. 2. The applicant states that he regrets the incident ever happened and praises the young lady that he hurt. 3. The applicant provides no additional documentation in support of this case. 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 1987. He successfully completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman). 3. On 17 May 1988, the applicant was convicted, contrary to his plea, by a general court-martial, of one specification of rape. He was sentenced to a forfeiture of $500.00 pay per month for 24 months, confinement for 30 months, and a Bad Conduct Discharge. 4. On 19 October 1988, the U.S. Army Court of Military Review (USACMR) affirmed the findings and the sentence. 5. On 5 January 1989, the U.S. Court of Military Appeals (USCMA) denied the applicant's petition for a grant of review. 6. United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth (KS) General Court-Martial Order Number 31, dated 8 February 1989, directed that the applicant’s Bad Conduct Discharge be executed. 7. On 17 March 1989, the applicant was discharged from the Army with a Bad Conduct Discharge under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), by reason of court-martial. He completed 10 months and 10 days of creditable active service with 305 days of time lost (confinement). 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 9. Army Regulation 635-200, 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. 10. In accordance with The Military Justice Act of 1983 (Public Law 98-209) and Title 10 of the U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ. 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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offense 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. 2. By law, the ABCMR may not disturb the finality of a court-martial. The Board is only empowered to change the severity of the sentence imposed if clemency is determined to be appropriate. 3. The applicant's entire record of service was considered in this case. However, given the seriousness of the offense for which he was convicted, it is determined that his service was not sufficiently meritorious or mitigating to warrant 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) AR20090003463 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090003463 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1