IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150014264 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: : 8 December 2016 DOCKET NUMBER: AR20150014264 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: : 8 December 2016 DOCKET NUMBER: AR20150014264 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, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge. 2. The applicant states, in effect, that: a. At the time of his discharge, he had served honorably for over 11 years receiving many awards and the respect of his superiors and peers. He had never been in any kind of trouble prior to this and was a good Soldier. He had issues with alcoholism and has subsequently received treatment. b. To this date, he has been the upstanding citizen he was raised and trained to be by the great leaders he had in the Army. His life is very different today, he works for a Fortune 500 company and is married to a wonderful woman. He is a college student working on his degree in finance, and he volunteers with several organizations such as the Wounded Warrior Program and the greater Chicago food depository. He is a spokesperson for his company actively recruiting and hiring veterans all the while supporting the National Guard and Reserve Soldiers. He is also a member of his company's Veterans Employee Resourcing Group. As you can see, he is not the same person he was when he received his BCD. 3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 2008 and six character reference letters. 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 October 1992. 3. The applicant was charged and subsequently tried by a general court martial. a. General Court-Martial Order Number 7, published by Headquarters, 21st Theater Support Command, on 27 April 2005, shows proceedings were terminated on 4 April 2005 after the presiding judge granted the defense motion for a mistrial. b. General Court-Martial Order Number 13, published by Headquarters, 21st Theater Support Command, on 2 November 2005, shows the applicant was convicted of: (1) A single specification of Charge I, for violating Article 134 of the Uniform Code of Military Justice (UCMJ); specifically, for indecent acts between 1 August 2003 and on or about 28 February 2004. (2) A single specification of Charge II, for violating Article 129 of the UCMJ; specifically, for unlawful entry on or about 21 February 2004. c. The applicant's sentence included reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for a period of 3 years, and discharge with a BCD. His sentence was adjudged on 25 May 2005. 4. General Court-Martial Order Number 109, dated 24 April 2008, affirmed the findings after appellate review. The automatic forfeiture of all pay and allowances was waived, effective 2 November 2005, for a period of 6 months. The appropriate authority ordered the BCD to be executed, as thus modified. 5. The applicant was discharged on 29 September 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. The DD Form 214 he was issued shows his character of service as "Bad Conduct." He completed 13 years, 4 months, and 8 days of net active service with lost time during this period from 2 May 2005 to 24 November 2007. 6. The applicant provides six character reference letters that attest to his work ethic, job performance, and leadership abilities. REFERENCES: 1. Army Regulation 635-200 set for the basic authority for the separation of enlisted personal. a. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. Paragraph 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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: 1. The evidence of record shows the applicant violated Articles 134 and 129 of the UCMJ, in that he committed the offenses of indecent acts and unlawful entry. For these offenses, he was tried and convicted by a general court-martial. He provides no evidence to support his contention that alcoholism led to his acts of misconduct. 2. The evidence shows the trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and his final discharge appropriately characterized the misconduct for which he was convicted. 4. The applicant's in-service and post-service accomplishments are noted, including his ability to secure a rewarding life after his discharge from the service. However, any redress by this Board of the finality of a court-martial conviction is prohibited by law, meaning the Board does not have the authority to expunge the general court-martial conviction. The Board is only empowered to change a discharge resulting from the sentence of a court-martial if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014264 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014264 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2