RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070001699 


	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

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea N. Nuppenau

Member

Mr. Dennis J. Phillips

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, an upgrade of his dishonorable discharge to a general under honorable conditions discharge.   

2.  The applicant states that he served his debt to society and wants a chance to serve his country with honor.  The applicant further states that he fought in Operation Just Cause on 20 December 1989.  

3.  The applicant continues that he made mistakes because he was young.  The applicant contends that people are trying to leave the military and if his discharge was upgraded he could reenlist and have a chance to defend his country.

4.  The applicant provides no additional documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 18 February 1994, the date of his discharge.  The application submitted in this case is dated 24 January 2007.  

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's record shows at the age of 20, he entered the Regular Army on 11 January 1989.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  

4.  The applicant's record shows that he earned the National Defense Service Medal, the Army Service Ribbon, and the Combat Infantryman Badge.  

5.  General Court-Martial Order Number 34, dated 8 November 1991 shows the applicant was found guilty on 25 July 1991, based on mixed pleas at a general court-martial to aggravated assault upon persons, by shooting at them with a dangerous weapon on or about 13 January 1991; and unlawfully carrying on or about his person a concealed weapon.  The applicant was sentenced to forfeiture of all pay and allowances, confinement for 40 months, reduction to the rank of private/pay grade E-1, and a dishonorable discharge.  The sentence was approved except for the part of the sentence extending to a dishonorable discharge.

6.  General Court-Martial Order Number 5, dated 17 January 1992 shows the applicant pled guilty on 10 October 1991 to conspiring to escape on or about 25 July 1991, to desertion during the period 25 July 1991 through 9 September 1991, and escaping from the custody of a sergeant, the person authorized to apprehend him on or about 25 July 1991.  The approved sentence included a dishonorable discharge, forfeiture of all pay and allowances, reduction to E-1, and confinement for 2 years with confinement in excess of 18 months suspended for one year.

7.  On 15 September 1992, the United States Army Court of Military Review set aside the action of the convening authority, dated 8 November 1991.  The record of trial was returned to The Judge Advocate General for a new action.

8.  General Court-Martial Order Number 32, dated 14 December 1992, shows that the convening authority approved the first court-martial finings and sentence except for that part of the sentence extending to a dishonorable discharge, will be executed.  Prior to taking this action, he considered any matters submitted by the accused or counsel.

9.  On 11 March 1993, United States Army Court of Military Review affirmed the findings of guilty and sentence of a dishonorable discharge, confinement for forty months, forfeiture of all pay and allowances, and reduction to the rank of private/pay grade E-1 as approved by the convening authority.

10.  Department of the Army, United States Disciplinary Barracks Combined Arms Command, Fort Leavenworth, Kansas, General Court-Martial Order Number 20, dated 10 January 1994, affirmed the sentence of the second court-martial and ordered the dishonorable discharge executed.

11.  The DD Form 214 issued to the applicant on the date of his separation, of 
18 February 1994, shows that he was separated with a dishonorable discharge under the provisions of paragraph 3-10, Army Regulation 635-200 (Personnel Separations), by reason of court-martial.  It also shows that at the time of his 
separation, he had completed a total of 2 years, 6 months, and 18 days of creditable active military service, and had accrued 404 days of time lost due to confinement.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies for assigning a character/description of service in connection with separation.  Paragraph 
3-10 contains guidance on dishonorable discharges.  It states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a General Court-Martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his dishonorable discharge should be upgraded to a general under honorable conditions discharge on the mistakes he made at a young age was carefully considered.  However, records show that the applicant was almost 22 years of age at the time of his first offense.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant's records clearly show he was tried and convicted by two General Courts-Martial for aggravated assault, by shooting at another with a dangerous weapon, unlawfully carrying a concealed weapon, conspiracy to escape, and desertion.

3.  Trials by courts-martial are 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.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable or a general discharge.

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 February 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 February 1987.  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

_RNN___  _JCR__ _  _DJP____  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.




_Jeffrey C. Redmann_
          CHAIRPERSON




INDEX

CASE ID
AR20070001699
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
1994/02/18
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON
ch 3, court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.