IN THE CASE OF:	  

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  AR20090002375 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that the charges and convictions that led to his UOTHC discharge/dismissal were the result of his poor decision making and inappropriate conduct of a personal nature.  He claims that while he is truly sorry for his errors in judgment, and the laws that were broken under the Uniform Code of Military Justice (UCMJ), there was no maliciousness in his actions and no criminal intent, rather it was simply poor moral and ethical judgment.  He claims his actions did no real harm to the Army and that he otherwise served quite honorably.  He states that while he admits his actions were morally and ethically wrong, in the civilian world they would barely go noticed, and are certainly not considered in any way criminal.  

3.  The applicant further states that it should also be noted that he served for three years as an enlisted Soldier in the U.S. Army Reserve (USAR) with a clean and exemplary record.  He claims he is still willing to fight and die for his country, and it would be a shame for a few moments of poor personal judgment to permanently scar his record and deny him the privilege of being called a veteran. He states that he only wants to be remembered as one who served the Army and his country the best he knew how.  He concludes by stating that prior to his separation from the Army he was told by Army counsel that his appeal would likely be approved if he kept a clean record, which he has done.


4.  The applicant provides no documentary evidence 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.  The applicant’s military records show that after having served in an 
enlisted status in the USAR, he was appointed a Reserve commissioned 
officer in the rank of second lieutenant (2LT) on 12 August 1983 and entered active duty on 29 August 1983.  He was trained in, awarded, and served in specialty 25A (Communication-Electronics).

3.  On 28 February 1985, the applicant was promoted to the rank of first lieutenant (1LT).  His DA Form 2-1 (Personnel Qualification Record) shows that he was awarded the Army Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition. 

4.  On 18 July 1985, pursuant to his pleas, a General Court Martial (GCM) found the applicant guilty of the following charges by violating articles of the UCMJ as indicated:  Charge I - Article 125, by committing sodomy on or about early January 1985; Charge II - Article 133, conduct unbecoming an officer on or about early January 1985; Charge III - Article 134 (2 specifications), by wrongfully having sexual intercourse with a married woman not his wife and by knowingly fraternizing with an enlisted Soldier;  Additional Charge I - Article 90, by willfully disobeying the lawful order of a superior officer; and Additional Charge II - Article 92, by being derelict in the performance of his duties.  The resultant sentence of the military judge was a reprimand, forfeiture of all pay and allowances, and dismissal from military service.  The GCM authority approved only so much of the applicant's sentence that provided for dismissal from the service and forfeiture of all pay and allowances in Headquarters, 1st Armored Division GCM Order Number 95, dated 30 September 1985. 


5.  On 10 February 1986, the United States Army Court of Military Review (USACMR) found that the specification(s) in Charge I, II, and III were multiplicous for findings.  Therefore, the specification(s) and the charges in Charge I and Charge III were set aside, and the remaining findings of guilty and sentence were affirmed.

6.  The revised findings from the USACMR were published in Headquarters, Department of the Army, Washington D.C. GCM Order Number 51, dated 
7 October 1986, which also directed that having been affirmed, the sentence be duly executed.  On 7 October 1986, the applicant was discharged accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he receive an UOTHC discharge under the provisions of chapter 12, Army Regulation 635-120 (Officer Resignations and Discharges), by reason of dismissal as a result of court-martial. It also shows he had completed a total of 3 years, 1 month, and 9 days of creditable active military service.

8.  Army Regulation 635-120, in effect at the time, set forth the policy for officer resignations and discharges.  Chapter 12 of this regulation provided for the dismissal of officers pursuant to a GCM sentence.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his UOTHC dismissal should be upgraded to an HD has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence shows that the applicant’s trial by court-martial that resulted in his dismissal from the Army was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The record further confirms that the applicant was only discharged after completion of the entire appellate process and only after his sentence was modified and affirmed by the appropriate appellate court.

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.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition, and his court-martial and resultant sentence were appropriate based on the gravity of his offenses.  Therefore, absent any evidence of error or injustice in the court-martial process, or of service of sufficient merit, there is an insufficient evidentiary basis to grant clemency 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 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)                                         AR20090002375



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ABCMR Record of Proceedings (cont)                                         AR20090002375



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