IN THE CASE OF: BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150014664 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: 1 December 2016 DOCKET NUMBER: AR20150014664 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: 1 December 2016 DOCKET NUMBER: AR20150014664 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, an upgrade of his bad conduct discharge. 2. The applicant states he served the time for the offense that he committed. It has been 28 years since his offense and his involvement with the military. His post-service conduct has been positive. He feels it is unjust that his punishment continues today although he has finished serving his time. He only had one bad incident in the 75 months he served, including his incarceration. His inability to receive medical benefits for injuries he received during his service continues to punish him further. He accepted responsibility and apologized for his actions. He has since been married to the same service member who has now retired after 31 years. He has travelled with her and has participated in various functions, being a positive role model in the military community. His actions [at the time] do not reflect who he is now. 3. The applicant provides 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 26 November 1982 and he held military occupational specialty 91Y (Eye Specialist). He served in Belgium from March 1985 to February 1988. 3. On 26 August 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk, in a reckless manner, causing said vehicle to strike another. His punishment consisted of a reduction to E-3, a forfeiture of pay, and 30 days of confinement. 4. On 26 January 1988, he was arraigned and tried at a special court-martial at Headquarters, 21st Support Command, for three specifications of committing an indecent act upon the body of a female under 16 years of age, not his wife, with intent to appeal to his sexual desires. 5. The court convicted him of the charge and three specifications. The court sentenced him to a bad conduct discharge, confinement at hard labor for 4 months, and reduction to the lowest enlisted grade. 6. On 28 March 1988, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The applicant was confined. 7. On 21 July 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 8. Special Court-Martial Order Number 226, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 9. The applicant was discharged on 29 December 1988. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, with a bad conduct discharge. This form further shows he completed 5 years, 10 months, and 22 days of military service with lost time from 26 January to 7 April 1988 and excess leave from 8 April to 29 December 1988 (265 days). 10. On 19 August 1997, the Army Discharge Review Board reviewed his separation processing and found it proper and equitable. As a result, that board denied his petition for an upgrade of his discharge. REFERENCES: 1. 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. 2. AR 635-200 provides for the separation of enlisted personnel: 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 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances. d. Paragraph 3–11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. DISCUSSION: 1. The applicant was convicted by a special court-martial and was sentenced to a bad conduct discharge. His trial by a special court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. 3. The Army does not have nor did it ever have a policy wherein a characterization of service is upgraded due to passage of time. Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs. Each case is considered on its own merits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014664 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014664 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2