PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           12 January 2000                   
	DOCKET NUMBER:   AR1999033136

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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 discharge be upgraded to honorable.

3.  The applicant states that after his release from confinement he served out his obligation for another year and a half.  He was told that if he did so he would be discharged with an honorable discharge.  The discharge under other than honorable conditions is an error.  He provides one character witness statement as supporting evidence.  Counsel also contends, in effect, that since the applicant was told after he was released from confinement that if he continued to serve for another year and a half he would be given an honorable discharge, his discharge should be upgraded.

4.  The applicant's military records show that he was inducted into the Army on 11 October 1972.  He completed basic training and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).

5.  Between February and September 1973, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on three occasions for failing to go to his appointed place of duty.

6.  On 16 October 1973, the applicant was convicted by a special court-martial of attempt to commit sodomy and assault and battery on a male soldier.  (The victim had testified the applicant accused him of “ratting” on his friends, hit him with his fist several times, and told him to “s____ my c___.”)  He was sentenced to confinement at hard labor for 6 months, to forfeit $217.00 pay for    6 months, to be reduced to pay grade E-1, and to be discharged with a bad conduct discharge.  He was confined from 16 October 1973 through 12 March 1974.

7.  Several DD Forms 1479, Prisoner Assignment and Clemency Board Action, on file show that, while the applicant was in confinement at the U. S. Disciplinary Barracks, Fort Leavenworth, KS, the Clemency and Parole Review Board voted not to recommend restoration to duty.  However, Special Court-Martial Order 146, Headquarters U. S. Disciplinary Barracks, Fort Leavenworth, KS, dated      13 March 1974 restored the applicant to duty pending completion of appellate review.

8.  On or about 4 December 1975, the appellate review was completed, the findings and sentence were affirmed, and the sentence was directed to be duly executed.

9.  There is no evidence of record to show the applicant was involved in any disciplinary action during the period he was restored to duty.

10.  On 16 December 1975, the applicant was discharged, with a Bad Conduct Discharge Certificate, pursuant to his court-martial sentence.  His DD Form 214, item 21, erroneously omits his 148 days time lost (confinement) and items 18(a), 18(c) and 18(e) erroneously fail to reflect his 148 days lost time.

11.  Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it 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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  A soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  However, the Board notes that even though the Clemency and Parole Review Board denied the applicant restoration to duty several times while he was in confinement, he was nevertheless restored to active duty in March 1974.  He served until the appellate review was completed and he was discharged in December 1975.  There is no evidence of record to show he received any disciplinary actions during this 21-month period. 

3.  The applicant’s Article 15s were for minor disciplinary infractions.  While the offenses for which he was court-martialed were serious, they were isolated instances of behavior.  (It is the opinion of the Board, after reading an extract of the victim’s testimony, that it was not the applicant’s intent to commit sodomy as such but rather that he used that action to show his power over the victim.)  While the Board concludes that the entire period of his service was not meritorious enough to justify upgrading his discharge to fully honorable, the Board does conclude that his creditable service after his restoration to duty justifies upgrading his discharge to general under honorable conditions.

4.  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 by showing that the individual concerned was given a general discharge from the Army on 16 December 1975, pursuant to his sentence by special court-martial.

2.  That the individual concerned be issued a General Discharge Certificate from the Army of the United States, dated 16 December 1975, denoting a general discharge in lieu of the discharge Bad Conduct Discharge now held by him.

3.  That the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.  The DD Form 214 will show 148 days time lost in item 21 and 2 years, 9 months and 18 days in items 18(a), 18(c) and 18(e).

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

BOARD VOTE:  

__jns___  __inw___  __lls___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033136	
SUFFIX		
RECON		
DATE BOARDED	20000112	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.