IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080017111 


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 dishonorable discharge to an honorable discharge.

2.  The applicant states that he had three other honorable discharges and that during his last enlistment he made a bad choice.  He adds that he believes his discharge should be upgraded to an honorable discharge to enable him to receive Department of Veterans Affairs medical and dental benefits as he is suffering from diabetes and a dental gum disease. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 June 2002; a copy of Order 183-1, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, on 2 July 2002; and a copy of U.S. Department of Justice, Federal Bureau of Prisons, Supervision Release Plan, dated 9 October 2008, in support of his request.

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 for a period of 3 years on 18 September 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76Y (Supply Specialist).  His records also show he executed a 4-year reenlistment on 22 March 1989, a 6-year reenlistment on 24 November 1993, and a 2-year reenlistment on 22 June 1999.  He was promoted to sergeant on 1 March 1993 and was assigned to A Company, 1st Battalion, 11th Infantry, Fort Benning, Georgia, at the time of his offense.

3.  On 3 February 2000, the applicant pled guilty at a general court-martial to one specification of raping a female who had not attained the age of 16 years between 21 December 1998 and 31 January 1999.  The Court sentenced him to reduction to private/E-1, forfeiture of all pay and allowances, 27 years of confinement, and a dishonorable discharge.

4.  On 30 May 2000, the convening authority approved the sentence and ordered it executed except for that part of the sentence extending to a dishonorable discharge, but the adjudged forfeitures were deferred effective 17 February 2000 until 19 May 2000.  Additionally, the forfeiture of pay and allowances required by Article 58(b) of the Uniform Code of Military Justice was waived effective 17 February 2000 until 19 May 2000 with direction that such moneys be paid to the applicant’s wife.  The convening authority ordered the record of trial be forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

5.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  On 7 June 2001, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

7.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 52, dated 28 August 2001, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s dishonorable discharge sentence executed.

8.  The applicant was discharged from the Army on 28 June 2002.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as dishonorable and that he completed a total of 15 years, 9 months, and 11 days of creditable military service.  He had 877 days of lost time due to confinement.

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 635-200, 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.

11.  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 contends that his discharge should be upgraded.

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  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.  Therefore, he is not entitled to an upgrade of his discharge.

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.


																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)                                         AR20080017111



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ABCMR Record of Proceedings (cont)                                         AR20080017111



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