RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 June 2007
	DOCKET NUMBER:  AR20060014203 


	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.


Ms. Catherine C. Mitrano

Acting Director

Mr. G. E. Vandenburg

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. William F. Crain

Member

Mr. Dean A. Camarella

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, in effect, that his discharge be upgraded and he receive a restoration of rights, provisions, and benefits.  He further requests restoration of possessions lost during his incarceration. 

2.  The applicant states, although the Army Court of Military Review (ACMR) set aside his conviction and directed that he be restored to his former status, this was not done.  He should have had the right to continue to serve for 20 or more years and been allowed to retire with a fully honorable discharge.  He should have had the right to have his family with him throughout his entire career with access to housing, medical and dental care, and other privileges.  Although the ACMR affirmed a finding of no sentence, he was still punished and forced out of the service with a general discharge (GD).  The Army disregarded the orders of the ACMR and gave him a GD.

3.  The applicant provides copies of the 12 June 1990 ACMR Memorandum Opinion and the 30 January 1991 ACMR Memorandum Opinion on Further Review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 August 1990, the date of his discharge.  The application submitted in this case is dated 27 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 entered active duty on 25 January 1983 and reenlisted on 25 April 1986.

4.  While serving in Germany the applicant was charged with a violation of Article 134, Uniform Code of Military Justice (UCMJ) by committing an indecent act and Article 125, sodomy.

5.  A general court-martial found the applicant guilty on the Article 134 charge and not guilty on the Article 125 charge, but guilty of the lesser included offense of attempted sodomy.  The military judge set aside the findings of guilty and dismissed the Article 134 charge as a lesser included offense of the offense of which the accused was found guilty.  

6.  The applicant was sentenced to be confined for two years, reduced to pay grade E-1, forfeit all pay and allowances, and a bad conduct discharge (BCD).

7.  On 25 September 1989, the court-martial convening authority approved the findings and sentence and directed that, except for the BCD, the sentence be executed.

8.  The applicant appealed his case and it was forwarded for review by the Army Court of Military Review (ACMR).

9.  In its 12 June 1990 Memorandum Opinion, the ACMR opined that they were not satisfied beyond a reasonable doubt of the applicant's guilt on the charge of attempted forcible sodomy.  They affirmed so much of the additional charge and specification that found a violation of Article 128, assault by inflicting bodily harm. They set aside the sentence and stated a rehearing on the evidence may be ordered.

10.  Army Correctional Brigade General Court-Martial Order Number 468, dated 10 August 1990, states that, since a rehearing was not practicable, the applicant's sentence was to be set aside and all rights, privileges, and property of which the applicant had been deprived by virtue of the sentence would be restored.  

11.  On 17 August 1990, the applicant's company command initiated administrative separation proceedings under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct, commission of a serious offense.  He recommended that the applicant receive an honorable discharge but noted that the separation authority was not bound by that recommendation. 

12.  On 21 August 1990, the applicant acknowledged the separation action and after consulting with counsel waived his rights to have his case reviewed by a board of officers, contingent on his receipt of a discharge characterization of not less than under honorable conditions.  He also waived his right to make a personal statement.

13.  On 27 August 1990, the discharge authority approved the discharge and directed he be issued a General Discharge Certificate.

14.  The applicant was discharged as a sergeant (E-5) under honorable conditions on 30 August 1990 with 7 years, 7 months, and 6 days of creditable service.

15.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 1-19c authorized processing under the provisions of chapter 14 at anytime after court-martial sentences where the sentence did not include a punitive discharge.  Conduct which was the subject of such a court-martial could be considered to determine retention or separation and, if appropriate, characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  The actions of the ACMR did not vacate, void or overturn the court-martial conviction.  What it did in plan language was to substitute a lesser charge for a more serious one and to say that, unless a rehearing was held, the sentence could not be imposed and the applicant should have all rights and benefits lost by virtue of the sentence, restored.

2.  The record contains no evidence that the order restoring the applicant's rights and benefits was not complied with. 

3.  There is no evidence the applicant was being considered for or had been placed on any promotion list at the time of his court-martial.  

4.  Nor is there any evidence the applicant lost any personal items which the Army had responsibility to maintain nor is there any evidence of a claim for reimbursement for any lost items of record.

5.  No Soldier has the "right" to be allowed to remain on active duty for any specific period of time, to retire, or to have their family with them throughout their entire career with access to housing, medical and dental care, and other privileges.  

6.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 August 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 August 1993.   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

___JTM__  __DAC__    __WFC    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.


______John T. Meixell __
          CHAIRPERSON


INDEX

CASE ID
AR20060014203
SUFFIX

RECON
 
DATE BOARDED
20070628                              
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.