IN THE CASE OF:	  

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080016150 


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, in effect, that he was wrongly convicted of a crime, when, in fact, he was trying to defend himself from three attackers.  The applicant concludes that he was unaware of the fact that he could request an upgrade of his discharge until recently, when he attempted to utilize Veterans Affairs facilities.

3.  The applicant provides no documentary evidence in support of this 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.  The applicant's records show he enlisted in the Regular Army on 17 February 
1998.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 77F (Petroleum Supply Specialist).  The highest rank the applicant attained while serving on active duty was specialist (SPC)/pay grade 
E-4.  However, at the time of his separation he held the rank of private (PVT)/pay grade E-1.  The applicant's service was terminated by a dishonorable discharge due to receiving a sentence by general court-martial.

3.  Headquarters, 1st Infantry Division, U.S. Army Europe, General Court-Martial Order Number 43, dated 20 September 1999, shows that the applicant was arraigned at Wuerzburg, Germany, on the offenses listed below at a general court-martial convened by the commanding general of the 1st Infantry Division.  The applicant was sentenced to be reduced to the grade of PVT/E-1, to forfeit all pay and allowances, to be confined for 5 years, and to receive a dishonorable discharge.  The sentence was adjudged on 1 July 1999 and all except the dishonorable discharge were approved to be executed immediately.

	a.  Charge I.  Violation of Article 80 (Attempts) of the Uniform Code of Military Justice (UCMJ).  Plea:  Not Guilty.  Finding:  Government motion to dismiss granted by the military judge prior to findings.

		Specification:  On or about 27 March 1999, attempt to murder Private (PV2/pay grade E-2) M____l J. H____r by means of stabbing PV2 H____r with a knife.  Plea:  Not Guilty.  Finding:  Government motion to dismiss granted by the military judge prior to findings.

	b.  Charge II.  Violation of Article 124 (Maiming) of the UCMJ.  Plea:  Guilty.  Finding:  Guilty.

		Specification:  On or about 27 March 1999, maim SPC J____n M. S____y by slicing his heart, puncturing his lung and breaking one of his ribs, while stabbing SPC S____y in the chest with a knife.  Plea:  Guilty.  Finding:  Guilty.

	c.  Charge III.  Violation of Article 134 (General Article) of the UCMJ.  Plea:  Guilty.  Finding:  Guilty.

		Specification 1:  On or about 27 March 1999, wrongfully endeavor to impede an investigation into the stabbing of SPC J____n M. S____y by throwing away the T-shirt the applicant was wearing when he stabbed SPC S____y.  Plea: Guilty.  Finding:  Guilty.

		Specification 2:  On or about 27 March 1999, was drunk and disorderly.  Plea:  Guilty.  Finding:  Government motion to dismiss granted by the military judge prior to findings.

	d.  Additional Charge.  Violation of Article 92 (Failure to obey order or regulation) of the UCMJ.  Plea:  Guilty.  Finding:  Guilty.

		Specification:  On or about 27 March 1999, having knowledge of a lawful order issued by Captain W____m M. R____l not to visit establishments on post that serve alcohol and not to consume alcoholic beverages, willfully failed to obey the order by visiting the German/American Friendship fest and drinking beer.  Plea:  Guilty.  Finding:  Guilty.

4.  Detachment A, 38th Personnel Services Battalion, U.S. Army Europe, Orders 288-405, dated 15 October 1999, reassigned the applicant in a prisoner status from his unit to the United States Army Personnel Control Facility located at Fort Knox, Kentucky, with a reporting date of on or about 31 October 1999.

5.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Order 157-00351, dated 6 June 2001, administratively reassigned the applicant in a parolee status, from the Special Processing Company of the Army Personnel Control Facility located at Fort Knox, Kentucky, to the Correctional Holding Detachment of the U.S. Disciplinary Barracks located at Fort Leavenworth, Kansas, with a reporting date of 8 June 2001.

6.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, Order 157-00352, dated 6 June 2001, released the applicant from confinement and placed him on parole effective 8 June 2001.

7.  U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 62, dated 30 August 2002, shows that the applicant's sentence of reduction to the grade of PVT, forfeiture of all pay and allowances, confinement for five years, and a dishonorable discharge adjudged on 1 July 1999 as promulgated in Headquarters, 1st Infantry Division, U.S. Army Europe, General Court-Martial Order Number 43, dated 20 September 1999, had been finally affirmed.  Accordingly, the dishonorable discharge would be executed.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the grade of PVT/pay grade E-1 as the result of a court-martial conviction effective 4 April 2003 with a dishonorable characterization of service.

9.  Court-martial convictions stand as adjudged or 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.

10.  Army Regulation 635-5 (Separation Documents), in pertinent part, provides that a characterization of service is a determination reflecting a Soldier's military behavior and performance of duty during a specific period of service.  The three administrative characters are:  honorable, general (under honorable conditions), and under other than honorable conditions.  The service of Soldiers in an entry-level status is normally described as uncharacterized.  Punitive discharge under the UCMJ is characterized as bad conduct or dishonorable.

11.  Army Regulation 635-200 (Personnel Separations), 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his dishonorable discharge should be upgraded was carefully considered and determined to lack merit.

2.  The applicant's contentions that he was wrongly convicted relate to evidentiary and/or procedural matters which were finally and conclusively adjudicated in the appellate process.

3.  Based on the available evidence and the applicant's multiple infractions of discipline, the applicant's service does not meet the standards of acceptable conduct and performance for an upgrade of his discharge to either a general under honorable conditions discharge or to a fully honorable discharge.
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 any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief he has requested.

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)                                         AR20080016150



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ABCMR Record of Proceedings (cont)                                         AR20080016150



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