IN THE CASE OF: BOARD DATE: 26 August 2009 DOCKET NUMBER: AR20090004465 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 to an honorable discharge. 2. The applicant states, in effect, that he was not convicted of the original charges against him but was convicted of a lesser charge (indecent acts); however, the government witness against him was not credible (honest). Accordingly, he desires to have his BCD upgraded to an honorable discharge. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 29 June 1979 for a period of 3 years, training as a food service specialist and assignment to Korea. He completed his training at Fort Jackson, South Carolina and was transferred to Korea on 21 November 1979. 3. He completed his tour in Korea and was transferred to Fort Jackson for duty as a cook in a basic training company. 4. On 28 December 1981, he reenlisted for a period of 4 years and assignment to Hawaii. He arrived in Hawaii on 2 April 1982. 5. On 6 June 1983, he was convicted by a Summary Court-Martial of the wrongful possession and distribution of marijuana. He was sentenced to confinement at hard labor for 10 days and reduction to the pay grade of E-1. 6. On 23 October 1984, he was convicted by a general court-martial of committing indecent, lewd and lascivious acts. He was sentenced to confinement at hard labor for 6 months and a BCD. He was transferred to Fort Riley, Kansas to serve his confinement. 7. On 25 October 1985, the United States Army Court of Military Review affirmed the findings and sentence approved by the convening authority. 8. On 21 April 1986, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 6 years, 4 months, and 19 days of total active service and had approximately 159 days of lost time due to confinement. 9. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 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 characterizes the misconduct for which the applicant was convicted. 2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case. 3. The applicant’s contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090004465 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090004465 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1