RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060014151 


	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.


Mr. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he has paid six years of his life for his error in judgment.  He states that he would like to have his discharge upgraded so that he may go on with his life.  He further states that he wants to continue his education and become a productive citizen. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 12 February 1993 and a Department of Veterans Affairs (VA) Application for VA Education Benefits, dated 19 September 2006. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 February 1993.  The application submitted in this case is dated 20 September 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 11 April 1979 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  On 
23 January 1980, the applicant was awarded the MOS 35E (Special Electronics Devices Repairman).  He was honorably discharged on 22 February 1984 for the purpose of immediate reenlistment on 23 February 1984.  

4.  On 1 August 1991, the applicant was convicted, contrary to his pleas, by a general court-martial of two specifications of sodomy by force and assault 

consummated by battery.  His sentence consisted of a forfeiture of all pay and allowances, confinement for 7 years, and a dishonorable discharge.  

5.  On 13 May 1992, the U.S. Army Court of Military Review (USACMR) considered the applicant's appeal and found that the findings and sentence were correct in law and fact and affirmed the findings and sentence.

6.  On 4 August 1992, the United States Court of Military Appeals (USCMA) denied the applicant's petition for review.

7.  On 12 February 1993, the applicant was separated from the Army with a dishonorable discharge pursuant to his court-martial sentence.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial.  It states that discharge will be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

9.  Army Regulation 635-200, 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.  

10.  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.

11.  In accordance with Title 10 of the United States 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 AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged and convicted.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the court-martial process.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.  

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that clemency is not warranted in this case.
	
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 February 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 February 1996.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __WFC      __DED__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.


2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



____William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR20060014151
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
DD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
105.0100.0000
2.

3.

4.

5.

6.