IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080003382 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge.

2.  The applicant states that, prior to his discharge he completed 3 years of service in the Army National Guard and had two honorable discharges from the Regular Army.  He also adds that although he was convicted and served his time, he has moved on with his life, physically, but not mentally.  He continues to think about his military career and needs peace of mind.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 November 1988, in support of his application. 

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.  With prior enlisted service in the Army National Guard, the applicant's records show that he enlisted in the Regular Army for a period of 4 years on 29 August 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His records also show that he executed a 4-year reenlistment on 22 January 1993.  The highest rank he attained during his military service was staff sergeant.

3.  The applicant's records further show that he was awarded the Army Service Ribbon, the Army Achievement Medal (2nd Oak Leaf Cluster), the Good Conduct Medal (2nd Award), the Noncommissioned Officers Professional Development Ribbon with Numeral two, and the Drivers/Mechanics Badge with Wheel Bar.  His records do not show any significant acts of valor during his military service.

4.  On 10 October 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of the Military Justice (UCMJ) for operating a vehicle while drunk, on or about 7 August 1989.  His punishment consisted of reduction from specialist (SPC)/E-4 to private (PVT)/E-1 (suspended for six months), 45 days of extra duty (suspended for six months), and forfeiture of $300.00 pay per month for two months ($150.00 per month for two months suspended for six months).  

5.  On 6 June 1996, at a General Court-Martial, the applicant pled not guilty to one specification of conspiracy to black market, on divers occasions between on or about 1 September 1995 and on or about 1 December 1995; one specification of violation of lawful general regulation, on divers occasions between on or about 1 July 1995 and on or about 1 December 1995; one specification of making a false official statement, on or about 26 November 1995; two specifications of obstructing justice on or about 27 November 1995 and on or about 1 December 1995; one specification of soliciting another to commit an offense, on divers occasions, between on or about 1 July 1995 and on or about 1 December 1995; two specifications of violating a lawful general regulation, on or about 18 May 1996 and on or about 19 May 1996; and three specifications of making a false official statement, on or about 18 May 1996 and on or about 19 May 1996.  

6.  The Court found the applicant guilty of all charges and specifications and sentenced him to a reprimand, reduction to private (PVT)/E-1, forfeiture of all pay and allowances, confinement for two years, and a dishonorable discharge.  The sentence was adjudged on 6 June 1996.



7.  On 29 August 1996, the convening authority approved the applicant's sentence and ordered it executed, except for that part of the sentence extending to a dishonorable discharge, and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

8.  The applicant was transferred to the U.S. Army Personnel Confinement Facility, Fort Sill, Oklahoma (OK) for service of his sentence to confinement.

9.  Headquarters, U.S. Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 141, dated 26 October 1998, shows that all required post-trial and appellate reviews were conducted, and affirmed the findings and sentence.  In this same order, the convening authority ordered the Dishonorable Discharge executed. 

10.  The applicant was discharged from the Army on 9 November 1998.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a Dishonorable Discharge.  This form further shows the applicant completed 8 years, 7 months, and 23 days of creditable military service.  He also had 558 days of lost time.   

11.  Based on the fact the applicant was separated with a dishonorable discharge as a result of a General Court-Martial conviction, he is not eligible to apply to the Army Discharge Review Board for upgrade of his discharge.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he had two prior honorable discharges and that time has passed and he needs peace of mind.  However, his records show that charges were brought against him for conspiracy to black market, violations of lawful general regulation, making several false official statements, obstructing justice, and soliciting another to commit an offense.  He was found guilty and was sentenced to confinement and a dishonorable discharge.  

2.  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.  

3.  Given the above, and after a thorough review of the available evidence, there is no cause for clemency.  

4.  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 did not submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003382



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ABCMR Record of Proceedings (cont)                                         AR20080003382



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