IN THE CASE OF:	  

		BOARD DATE:	       17 March 2009

		DOCKET NUMBER:  AR20090001016 


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, in effect, reconsideration of his request that his dishonorable discharge be upgraded.

2.  The applicant states, in effect, he believes the discharge was given unjustly and without merit.  He adds that in the interest of justice, the Board should consider his application because he sustained a severe head injury.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 11 March 1996 and a
DA Form 4430-R (Department of the Army Report of Result of Trial), dated
3 November 1993.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002011, on 10 June 2008.

2.  The applicant provides a new argument that will be considered by the Board.


3.  The applicant's record shows he enlisted and entered active duty in the Regular Army for a period of 6 years on 27 June 1989.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  The highest grade the applicant attained during his military service was specialist/pay grade E-4.

4.  The applicant’s military personnel records contain a copy of Headquarters,
3rd Infantry Division, U.S. Army Europe, General Court-Martial Order Number 89, dated 7 December 1993, which documents charges, specifications, pleas, and findings of the applicant’s General Court-Martial.  This General Court-Martial Order, in pertinent part, shows:

     a.  on 3 November 1993, sentence was adjudged.  The applicant’s sentence was to be reduced to the rank and grade of Private (E-1); to forfeit all pay; to be confined for 3 years; to pay the United States a fine in the amount of $5,000.00, if said fine is not paid, to be further confined for 1 year; and to be dishonorably discharged from the U.S. Army; and

     b.  on 7 December 1993, the convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of all pay, confinement for 24 months, a fine in the amount of $5,000.00, and a dishonorable discharge.  Except for that part of the sentence extending to a dishonorable discharge, the convening authority ordered the sentence duly executed.

5.  The applicant’s military personnel records contain a copy of United States Army Court of Criminal Appeals, Before [Judges Names] Appellate Military Judges, United States, Appellee versus [Applicant], Army 9-----0, Memorandum Opinion, dated 20 April 1995; and United States Court of Appeals for the Armed Forces, United States, Appellee versus [Applicant], Criminal Appeal Number
9-----0, that shows on consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, on 20 November 1995, the United States Court of Appeals of the Armed Forces denied the applicant’s petition.

6.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Field Artillery Center, Fort Sill, Oklahoma, General Court-Martial Order Number 8, dated 6 February 1996.  This document shows, in pertinent part, the applicant's sentence was affirmed.  This order also shows that the provisions of 

Article 71(c) having been complied with and the applicant having served that part of the sentence pertaining to confinement, the dishonorable discharge was ordered duly executed. 

7.  The applicant’s military personnel records contain a DD Form 214 issued to him on the date of his separation confirming he was discharged under dishonorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct 
Discharge), by reason of court-martial (other).  At the time of his discharge the applicant had completed 5 years, 2 months, and 7 days of net active service during the period of service under review with 1 year, 6 months, and 3 days of time lost due to military confinement.

8.  In support of his application, the applicant provides copies of his DD Form 214 with an effective date of 11 March 1996 and a DA Form 4430-R, dated
3 November 1993.  A review of the applicant’s military personnel records show that these two documents are contained in his records and that they were also included and considered by the Board with his original request to the ABCMR.

9.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

10.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers. Chapter 3, Section IV, paragraph 3-10 of that regulation 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 sentence affirmed before it can be duly executed.

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.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request to upgrade his dishonorable discharge should be reconsidered because he believes the discharge was given unjustly and without merit.  However, he offers no new evidence; therefore, there is no basis with which to grant his requested relief.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.  The applicant's contention concerning his head injury relates to evidentiary/mitigating matters that could have been raised in the court-martial appellate process and furnish no basis for recharacterization of his discharge.

3.  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.  

4.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.


5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20080002011, dated 10 June 2008.



      __________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)                                         AR20090001016



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001016



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1