IN THE CASE OF:	

		BOARD DATE:	  24 November 2008

		DOCKET NUMBER:  AR20080013177 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's dismissal be upgraded to a general discharge under honorable conditions.  He also requests authorization to retire and any other appropriate relief.

2.  Counsel states that after looking back at the applicant's 21-year military career and the circumstances surrounding his termination, the applicant is contemplative and sincerely remorseful.

3.  Counsel provides a detailed description of the applicant's personal history, his military history, as well as his duty assignments, awards and decorations.

4.  Counsel further describes a brief synopsis of the applicant's case history by stating that on 8 February 1995 and 24 February 1995, the applicant was interviewed by a Criminal Investigation Command [formerly known as Criminal Investigation Division] (CID) Special Agent concerning missing computers from the base.  The applicant made a voluntary statement at both times in which he denied any involvement with the missing computers.  On 14 March 1995, the applicant admitted to the CID Special Agent that he took the missing computer equipment and that he had lied about his involvement.  The applicant said that he returned to the building he had previously worked at to find that it was unsecured and his personal belongings were scattered and many of his belongings were missing.  The applicant states he was totally distraught and he made an inappropriate decision to take the computer equipment to "teach them a lesson."

5.  Counsel continues by stating that on 29 June 1995 the applicant was formally charged with three specifications of making a false official statement, two specifications of larceny and wrongful appropriation, and one specification of housebreaking.  The charges were referred to a general court-martial.  The applicant pled not guilty to all charges.  On 1 November 1995, the applicant was found guilty of two specifications of making a false official statement and two specifications of larceny.  The applicant was sentenced to confinement for 8 years, forfeiture of $2,900.00 per month for 96 months and dismissal from the service.

6.  Counsel argues that the applicant admits he committed misconduct and violated the Uniform Code of Military Justice (UCMJ), but he had no intention of keeping or selling the equipment.  However, he was unable to reenter the base to return the equipment.  The applicant's illogical reasoning cost him his career, his retirement, and his livelihood.

7.  Counsel argues that while the applicant was in confinement he actively participated in counseling and treatment to better understand his behavior.  The applicant successfully completed two courses, "Dealing with Criminal Behavior" and "Larceny Group," which allowed him to appreciate the criminality of his conduct.  At that time the applicant had not fully grasped the seriousness of his situation.  His civilian attorney had requested a sanity board under the Rules for Court-Martial 706 and the military judge granted the request for a sanity board hearing.  The applicant was diagnosed with adjustment disorder, acute, with mixed anxiety, and depressed mood.  In summary, counsel states that the applicant served 20 years of faithful service with the Army and has suffered the loss of all retirement benefits.

8.  Counsel provides 22 enclosures, which he lists in a table of contents.  The enclosures consist of various correspondence, educational achievements, two Honorable Discharge Certificates, a warrant officer appointment letter, separation document (DD Form 214, Certificate of Release or Discharge from Active Duty), Officer Record Brief, Officer Evaluation Report, two sworn statements, a Rights and Warning Form, Charge Sheet with results from the trial, two lesson plans for "Dealing with Criminal Behavior" and "Larceny Group," a copy of the sanity board order, a mental health evaluation, and four character statements.


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 Board has requested the applicant's military records from the repository in St. Louis, Missouri, but without success.  Information contained in these proceedings was derived from documents submitted by the applicant and his counsel.

3.  The applicant's record shows that he enlisted in the Regular Army as an enlisted Soldier on 12 June 1975 for 4 years.  He served until he was honorably discharged on 13 December 1977.  He immediately reenlisted on 14 December 1977 for 6 years and served until he was honorably discharged on 18 August 1983 for the purpose of accepting appointment as a warrant officer on 19 August 1983.

4.  The applicant served continuously in various assignments until he was dismissed from active duty with a dishonorable discharge as result of a general court-martial on 8 May 1998.  He completed a total of 20 years and 4 months of total active service.

5.  The 22 enclosures that were submitted through counsel give a picture of the applicant's character and behavior through the history of his military career and describe the applicant as a well respected citizen in his community.

6.  The findings from the sanity board provide that the applicant did not have a mental disease or defect at the time of his alleged criminal conduct and that his adjustment disorder, acute, with mixed anxiety and depressed mood, was secondary to identifiable stressors (legal), which occurred within 3 months of the stressors (criminal conduct).  He was able to appreciate the nature and quality or wrongfulness of his conduct, and he had the mental capacity to understand the proceedings and to conduct and cooperate intelligently in his own defense.

7.  Army Regulation 600-8-24 (Officer Transfers and Discharges) implements the statutory provisions of Title 10, U.S. Code, governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 2, section XVI of this regulation provides for the dismissal of Regular Army officers and warrant officers who have been convicted and sentenced to dismissal as a result of a general court-martial.

8.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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 through counsel that his dismissal should be upgraded to a general discharge under honorable conditions.  He requests authorization to retire and any other appropriate relief.

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Without evidence to the contrary, it must be presumed that his conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant had no significant mental illness, and he was in good health upon dismissal from active duty.

4.  The applicant's request through counsel was carefully considered as well as the submitted enclosures.  However, given the seriousness of the offense for which he was convicted, it was not considered sufficiently meritorious to warrant clemency in this case.  The applicant had his opportunity to explain why he took the computers and his intent to return the computers at his trial.  It must then be presumed these matters were considered at his trial.  In the absence of an error or obvious injustice, it would be inappropriate to now change the sentence of the applicant's general court-martial.

5.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his dishonorable discharge at this time or to show he retired for years of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X____ 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.



      __________X_______________
                 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)                                         AR20080013177



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ABCMR Record of Proceedings (cont)                                         AR20080013177



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