IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080008768 


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 that his dishonorable discharge be upgraded.

2.  The applicant states that he had three honorable discharges, and he feels that his dishonorable discharge should be upgraded.  He has been a good citizen and an honest working man.

3.  The applicant provides two letters of support, undated, from the supervisor and manager at the place of his employment.

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.  The applicant enlisted in the Regular Army on 24 September 1976.  He      was honorably discharged on 9 October 1979 and immediately reenlisted on     10 October 1979.  He was honorably discharged on 26 September 1982 and immediately reenlisted on 27 September 1982.  He was honorably discharged on 7 October 1985 and immediately reenlisted on 8 October 1985.

3.  On 27 June 1989, the applicant was convicted, contrary to his pleas, by a general court-martial of two specifications of rape (on or between 1 September 1988 and 31 October 1988 and on or about 14 April 1989).  He was sentenced to be reduced from Specialist, E-4, to Private, E-1; to forfeit all pay and allowances, to be dishonorably discharged, and to be confined for 10 years.

4.  On 27 April 1990, the U. S. Army Court of Military Review affirmed the findings of guilt and the sentence.  The applicant had appealed his conviction on the second specification by asserting the victim consented to intercourse.  The Court noted that the record of trial showed that the victim was very intoxicated on the night in question.  During the night, in her barracks room, another female Soldier entered her room to find some keys and saw the applicant in bed with the victim.  That Soldier stated she asked the victim about the keys but received no response and thought the victim was unconscious.  The Court was persuaded beyond a reasonable doubt that the applicant was not reasonably and honestly mistaken regarding the victim’s lack of consent.

5.  On 8 August 1990, the U. S. Court of Military Appeals denied the applicant’s petition for a grant of review.

6.  On 30 November 1990, the applicant was discharged, pursuant to his sentence by court-martial, with a dishonorable discharge.  He had completed    12 years, 9 months, and 3 days of creditable active service with 522 days of lost time (confinement).  Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) notes he had continuous honorable active service from 24 September 1976 through 7 October 1985.

7.  The applicant provided two letters of support from his place of employment.  These two individuals stated they have known the applicant for the past 11 or    12 years, and he is a very dependable person with much respect for management.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

9.  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.

10.  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’s previous honorable discharges have been noted.  However, those previous periods of honorable service have been noted on his DD Form 214.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations, and the dishonorable discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant’s good post-service conduct is commendable; however, it does not warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ____xx__  ___xx___  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.




      _______ _  xxxx____   ___
               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)                                         AR20080008768





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ABCMR Record of Proceedings (cont)                                         AR20080008768



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