IN THE CASE OF:	   

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:   AR20090001599 


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, that his dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he suffered from post traumatic stress disorder (PTSD) at the time of the incident.

3.  The applicant provides no additional documentation in support of his 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.  On 18 March 1986, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  On 8 December 1986, the applicant was assigned duty as an aidman at Fort Sill, Oklahoma.

4.  On 24 October 1987, the applicant was promoted to the rank of specialist four, pay grade E-4.

5.  On 15 March 1989, the applicant was reduced to the rank of private first class, pay grade E-3.  There is no available evidence showing the reason or circumstances surrounding his reduction.

6.  On 7 February 1990, the applicant was promoted to the rank of specialist, pay grade E-4.  

7.  On 6 January 1992, the applicant was assigned duty as an aidman with the 188th General Dispensary, located in the Federal Republic of Germany.

8.  On 1 January 1993, the applicant was promoted to sergeant, pay grade E-5.

9.  On 2 May 1995, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 for indecent assault (Specifications one and two); for deceitful persuasion (Specifications three and four); and for making wrongful and unlawful false statements under oath (Specification five).

10.  On 22 May 1995, the applicant offered to plead guilty to the charge and to specifications one, two, and five, and not guilty to specifications three and four.  He also offered to enter into a written Stipulation of Fact correctly describing the offenses to which he offered to plead guilty; to be tried by a military judge alone; to waive the Article 32 investigation; and to waive the personal appearance of any overseas witnesses.  The applicant's offer was contingent upon the convening authority agreeing to approve no sentence in excess of a reduction to pay grade E-1; a forfeiture of all pay and allowances; confinement for 18 months; and a dishonorable discharge.

11.  On 7 June 1995, the convening authority accepted the applicant's plea offer as stated above.

12.  On 15 June 1995, the court-martial was called to order.  The applicant's defense counsel requested a delay in the proceedings until 17 July 1995 in order to permit the arrival of family.

13.  On 17 July 1995, before a Military Judge at a General Court-Martial, the applicant pled guilty to the charge; guilty to the lesser included offense of indecent acts for specifications one and two; guilty to specification five; and not guilty to specifications three and four.  

14.  The military judge accepted the applicant's plea and found him guilty of the charge and specification five; not guilty of specification one and two, but guilty of the lesser included offense of indecent acts; and dismissed specifications three and four.  The military Judge sentenced him to a reduction in rank to pay grade E-1, a forfeiture of all pay and allowances, confinement for 26 months, and a dishonorable discharge.

15.  On 29 March 1996, the Staff Judge Advocate, in a written review for the convening authority, summarized the charges, specifications, pleas, findings, and sentence.  The Staff Judge Advocate also summarized the applicant's military service to include his awards and lack of any previous nonjudicial punishment or court-martial convictions.  The Staff Judge Advocate recommended approval of only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 18 months, and a dishonorable discharge.

16.  On 1 May 1996, the applicant's defense counsel requested clemency based on the financial hardship of the applicant's family; on the applicant's prior good service; on the applicant's admission of guilt, saving the government time, money and effort; and on the applicant's efforts since confinement to better himself.  The defense counsel also stated that the dishonorable discharge was inappropriate for the offenses.  Experience demonstrated that a dishonorable discharge was reserved for crimes such as murder and rape.  The defense counsel requested mitigation of the dishonorable discharge and of a portion of the forfeitures.  

17.  On 9 May 1996, the Staff Judge Advocate, in an addendum to his previous recommendation, stated that he had carefully considered the applicant's request for clemency; opined that there were no corrective action required with respect to the findings and the sentence was warranted; and he made no change to his earlier recommendation.

18.  On 9 May 1996, the convening authority approved the sentence providing for reduction to the rank of private/pay grade of E-1, a forfeiture of all pay and allowances, confinement for 18 months and except for that part extending to a dishonorable discharge ordered the sentence executed. 

19.  On 6 June 1997, the United States Army Court of Criminal Appeals considered the entire record and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the finding of guilty and the sentence were affirmed.

20.  General Court-Martial Order Number 216, United States Army Field Artillery Center and Fort Sill, Oklahoma, dated 11 September 1997, provided that the sentence to a forfeiture of all pay and allowances, confinement for 18 months, a reduction to pay grade E-1, and a Dishonorable Discharge, adjudged on 17 July 1995, as promulgated in General Court-Martial Order Number 14, 1st Infantry Division, APO AE 09036, dated 9 May 1996, had been affirmed.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed.

21.  The applicant's DD Form 214 shows that he was discharged on 8 October 1997, under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a dishonorable characterization of service. 

22.  Army Regulation 635-200 (Personnel Separations - Enlisted), 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.  

23.  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 dishonorable discharge should be upgraded to honorable.

2.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  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 the aforementioned requirement.

5.  In view of the above, the applicant's request should be denied.  

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)                                         AR20090001599



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ABCMR Record of Proceedings (cont)                                         AR20090001599



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