IN THE CASE OF:	  

		BOARD DATE: 	        9 July 2009

		DOCKET NUMBER:  AR20080017171 


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 to an honorable or a general discharge.

2.  The applicant states that he completed two full terms of service and with his dishonorable discharge he will not be able to use Department of Veterans Affairs (VA) education benefits under the Montgomery GI Bill – Active Duty Educational Assistance Program, which he was informed that he is eligible to receive. 

3.  The applicant provides a copy of a Certificate of Eligibility from the VA dated 1 April 1999; and a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 11 September 1990, the applicant enlisted in the Regular Army (RA) in Baltimore, Maryland, for 3 years, in the pay grade of E-2.  He successfully completed his training as a combat engineer.

3.  On 29 May 1991, the applicant was convicted, pursuant to his plea, by a special court-martial of fleeing the scene of an accident.  He was sentenced to a forfeiture of pay in the amount of $250.00 a month for 4 months.

4.  The applicant was promoted to the pay grade of E-3 on 11 September 1991 and he was promoted to the pay grade of E-4 on 1 February 1993.

5.  The applicant reenlisted in the RA for 3 years on 18 March 1993.  On 10 October 1995, he reenlisted in the Army for an additional 3 years.  He was promoted to the pay grade of E-5 on 1 March 1996.

6.  On 26 June 1998, the applicant was convicted, pursuant to his pleas, by a general court-martial of conspiracy to commit rape and of rape.  He was sentenced to a dishonorable discharge, confinement for 5 years, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.

7.  The convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 42 months, a reduction to the pay grade of E-1, and a forfeiture of all pay and allowances.  Except for the part extending to a dishonorable discharge, the sentence was ordered executed.

8.  On 1 April 1999, the VA forwarded the applicant a Certificate of Eligibility, certifying that he was entitled to receive VA education benefits under the Montgomery GI Bill – Active Duty Educational Assistance Program for enrollment and pursuit of an Associate Degree in Business Management at Pierce College, Lakewood, Washington.

9.  On 27 June 2002, Headquarters, United States Army Field Artillery Center and Fort Sill, noting that the sentence extending to confinement had been served, affirmed the sentence and ordered the dishonorable discharge executed.

10.  Accordingly, on 27 September 2002, the applicant was dishonorably discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 9 years, 7 months, and 20 days of net active service.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

12.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

13.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  

14.  Paragraph 3-7 also 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 dishonorable discharge should be upgraded to an honorable or a general discharge so he will be able to use the Montgomery GI Bill education benefits, which he was informed that he is eligible to receive.

2.  His contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  The evidence of record shows that he was convicted of conspiracy to commit rape and of rape.  He was convicted pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed 
sentence was duly executed.  The fact that he has a desire to obtain education benefits through the VA is not a sufficient justification for upgrading his dishonorable discharge.



3.  The applicant’s 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.

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 has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017171



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ABCMR Record of Proceedings (cont)                                         AR20080017171



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