RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070009002 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. N. Troup

Member

Mr. Thomas M. Ray

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 that he should have been provided the opportunity to apply for retired pay prior to being court-martialed.  He states that Congressional Law states that a service member becomes entitled to retired pay upon completion of 20 years of service.  He states that his statement of service shows that he has more than 20 years of honorable service.

3.  The applicant provides a copy of a Statement of Service dated 7 October 1997 and a portion of a Congressional Research Service (CRS) Issue Brief for Congress entitled Military Retirement: Major Legislative Issues, Updated March 2006.

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.  On 27 February 1976, he enlisted in the Regular Army (RA) in San Antonio, Texas, for 3 years, in the pay grade of E-1.  He successfully completed his training as a practical nurse.  He remained on active duty through a series of reenlistments and extensions.

3.  The applicant’s record of trial is not available for review at this time.  However, the available records indicate that on 22 August 1996, the applicant was convicted, pursuant to his pleas, by a general court-martial of rape of a child under the age of 16 between on or about 31 December 1990 and 31 October 1994; and committing indecent acts with a child under the age of 16 between on or about 31 December 1990 and 31 October 1994.  He was sentenced to a dishonorable discharge, confinement for 15 years, a reduction to the pay grade of E-1, and a forfeiture of pay in the amount $850.00 per month for 24 months, and thereafter, a forfeiture of all pay and allowances.

4.  The convening authority approved only so much of the sentence on 26 October 1996, as provided for a dishonorable discharge, confinement at hard labor for 8 years, a reduction to the pay grade of E-1, and a forfeiture of pay in the amount of $850.00 per month for 24 months, and thereafter, a forfeiture of all pay and allowances.

5.  On 20 October 1997, while he was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, the applicant submitted an Inmate Request Slip indicating that he believed he was entitled to put in for retirement because he served 20 years and 3 months on active duty and because his wife, two children and two grandchildren needed financial support.  Along with his Inmate Request Slip, he submitted a Statement of Service; an Application for Voluntary Retirement; a copy of an Inmate Request Slip dated 8 October 1997; and copies of excerpts from an unknown brief pertaining to Federal law.

6.  The applicant received a reply to his request on 28 October 1997.  He was told that while it was true he served 20 plus years honorably, he was also sentenced to a dishonorable discharge.  The applicant was told according to the retirement specialist, he was ineligible for retirement; and that even if he did not have a dishonorable discharge, he could not apply for retirement while he was in confinement.  The reply was signed by a military personnel clerk. 

7.  On 28 April 1998 General Court-Martial Order Number 29, United States Disciplinary Barracks, United States Army Combined Arms Center and Fort Leavenworth, noting that the findings and sentence as approved by the convening authority had been affirmed, and ordered that the dishonorable discharge be executed.

8.  Accordingly, on 22 May 1998, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3-10, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 20 years, 3 month and 7 days of total active service and he had approximately 639 days of lost time due to being in confinement.  He was furnished a dishonorable discharge.




9.  The portion of the CRS Issue Brief for Congress that the applicant submits in support of his application indicates that a service member becomes entitled to retired pay upon completion of 20 years of service, regardless of age.

10.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a court-martial 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.  

11.  Army Regulation 635-200 serves as the authority for the separation of enlisted personnel.  This regulation provides, in pertinent part, that a soldier who has completed 20 years but less than 30 years of active Federal Service in the United States Armed Forces may be retired at his or her request.  The soldier must have completed all required service obligations at the time of retirement.  Paragraph 12-14f provides that all requests for retirement of eligible soldiers with less than 30 years of service are considered on their individual merits.  Such requests normally should be approved.  Requests, however, may be disapproved, or the required date of retirement delayed, based on the best interest of the Army.  The regulation is based on Title 10 United State Code, section 3914 which grants the Secretary of the Army discretion in approving retirements for enlisted Soldiers who have at least 20, but less than 30 years of service.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was 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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  Additionally, in accordance with the applicable law, this Board is not empowered to set aside a court-martial conviction.  It is only empowered to change the severity of the imposed sentence if clemency is determined to be appropriate.  Considering his felonious acts (rape of a child under the age of 16 

and committing indecent acts with a child under the age of 16), which resulted in his court-martial conviction, clemency does not appear to be appropriate in this case.  However, the applicant is not precluded from applying to the United States Pardon Attorney concerning this matter.

4.  Although Army Regulation 635-200 provides that a soldier who has completed 20 years but less than 30 years of active Federal Service in the United States Armed Forces may be retired at his or her request and that such requests normally should be approved, the same regulation provides that all requests for retirement of eligible soldiers with less than 30 years of service are considered on their individual merits and that requests may be disapproved based on the best interest of the Army.  

5.  The applicant was dishonorably discharged as a result of a duly reviewed, approved and affirmed general court-martial conviction.  He has provided no evidence that shows he applied and was approved for retirement.  He was an inmate pending a dishonorable discharge at the time that he submitted his request for retirement and it appears the appropriate authority did not believe it would be in the best interest of the Army to allow him to retire.  In the absence of evidence to the contrary, it must be presumed that the action taken by the Army in his case was correct.

6.  In order to justify correction of a military record the applicant must show 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.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JNS__  __MJNT_  __TMR__  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.





_____John N. Slone____
          CHAIRPERSON




INDEX

CASE ID
AR20070009002
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  30
105.0000/COURT-MARTIAL
2.  31
105.0100/SENTENCE INCLUDE DISCHARGE
3.

4.

5.

6.