RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070012673 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carman Duncan

Member

Ms. Rea M. Nuppenau

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 honorable.

2.  The applicant states, in effect, that his rights were violated.  He served for more than 20 years in the United States Army and is unable to receive medical benefits from the Department of Veterans Affairs.  He further states that while assigned in the Republic of Korea he tested positive for tuberculosis.  He also contends that he had high blood pressure and was put on medicine.  While in the Federal Republic of Germany, he hurt his arm during a training exercise.  He has knee, back and joint problems.  

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), extracts of Army medical records, and his DA Form 2-1 (Personnel Record).

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 18 June 1976, the applicant enlisted in the Regular Army.   He completed his initial training and was awarded military occupational Specialty 13B1O (Cannon Crewmember).  He served through a series of reenlistments and attained the rank of sergeant first class on 1 March 1995.  

3.  On 25 January 1995, charges were preferred under the UCMJ.  Charge I was for violation of Article 81 (Conspiracy) for conspiring to steal meat and other duty-free and tax-free commissary goods; charge II for violation of Article 121 (Larceny) for three specifications of stealing meat, and one specification of wrongful appropriation of a military vehicle; charge III for violation of Article 92 (failure to obey an order or regulation) for two specifications of  wrongfully making a prohibited transfer of meat to persons not entitled to duty-free import privileges or tax-free purchase privileges under the Republic of Korea/United States Status of Forces Agreement; and charge IV (Attempts) for attempt to violate a lawful general regulation by wrongfully stealing meat, the property of the Defense Commissary Agency, and transporting it to a prearranged place, for the purpose of transferring it to a person not entitled to receive it.  These charges were served on the applicant on 17 February 1995.

4.  On 24 April 1995, the applicant requested trial before a military judge alone.  

5.  On 27 April 1995, the applicant pled guilty to all charges and specifications. 

6.  The military judge found him guilty of charge I and its specification; of charge II and specifications 1, 3 and 4; and not guilty of specification 2 of charge II and of charge III and IV and their specifications.  The military judge sentenced the applicant to reduction to private (pay grade E1), forfeiture of $400 pay per month for 60 months, confinement for 5 years, and to be dishonorably discharged.  

7.  On 5 June 1995, the Staff Judge Advocate (SJA) summarized the applicant's service and recommended approval of the findings and sentence.

8.   The SJA, in an addendum to his recommendation, discusses the defense allegations of legal error, in that the military judge applied an inappropriate standard in denying a defense motion to suppress the charges in this case.  The defense counsel further alleged that the military judge committed multiple errors which had the cumulative effect of rendering the court-martial unconstitutional. The defense requested clemency for the applicant.  The SJA reviewed these matters and disagreed with the defense counsel's allegations of legal error.  The SJA adhered to the original recommendation.

9.  On 27 July 1995, the convening authority approved the sentence as provided for a dishonorable discharge, confinement for 5 years, forfeiture of $400.00 pay per month for 60 months, and reduction to the grade of E1.  Except for that part of the sentence extending to a dishonorable discharge, the sentence was ordered to be executed.  

10.  On 18 December 1996, the United States Army Court of Criminal Appeals reviewed and denied the applicant's petition.  It affirmed the findings of guilty and the sentence.
  

11.  General Court-Martial Order Number 66 [corrected copy], Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 5 March 1999, provided that the sentence to a dishonorable discharge, reduction to private, pay grade E1; forfeiture of $400.00 pay per month for 60 months, and confinement for 5 years, adjudged 11 May 1995, had been affirmed.   Furthermore, it stated that the provisions of Article 71c, UCMJ, had been complied with and the dishonorable discharge would be executed.

12.  The applicant's Certificate of Release or Discharge from Active Duty 
(DD Form 214) shows that he was discharged on 2 April 1999 under the provisions of Army Regulation 635-200, chapter 3.  He received a dishonorable discharge.

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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The evidence of record does not show that the applicant's rights were violated.  The applicant has not provided any evidence to substantiate his contention. 

3.  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 the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM___  __CD___  __RMN__  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 T. Meixell ______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.