IN THE CASE OF:	  

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090006340 


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, an upgrade of his dishonorable discharge (DD).  

2.  The applicant states, in effect, that he served for over 10 years and gave his all.  He claims to have served diligently for most of his career and made a very bad and foolish decision during the latter part of his career.  He claims his goal was to retire as an Army Soldier and he is deeply sorry to the Nation, the Army and his family for his foolish actions.  He states that he is not a criminal, and never will be.  He claims the Army taught him responsibility, respect, wisdom, courage, and honor for his country.  

3.  The applicant further states that he served in Somalia with pride and love, as he did in many other duty stations and he always gave his all.  He states he has many accomplishments because of the Army and has received many letters acknowledging him as a veteran, but he really does not feel like one.  He states that the crime he committed in the service really hurts and still bothers him.  He claims he is now a very productive citizen in his community and works as a case management employee with low income families.  He also states that he is a Deacon in his church who also serves as a youth teacher.  He states that he has been a model citizen since his separation from the Army and is also a member of the Judicial Processing Commission, which goes into prisons to encourage inmates to get their lives on track prior to their release from confinement.  He concludes by requesting his entire career be considered and not just the horrible mistake he made.  He claims he really gave his all to his country during his military career and he is once again apologizing for his actions.  
4.  The applicant provides a self-authored letter 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 record shows that he enlisted in the Regular Army and entered active duty on 4 March 1986, and was trained in and awarded military occupational specialty (MOS) 92A (Materiel Storage and Handling).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to sergeant (SGT) on 1 January 1991, and that this is the highest grade he attained while serving on active duty.  It further shows that he served in Hawaii for 42 months between 1989 and 1992, and that he earned the following awards during his active duty tenure:  Army Good Conduct Medal (2nd Award), Army Achievement Medal, Noncommissioned Officer Professional Development Ribbon, National Defense Service Medal, and Overseas Service Ribbon.  

4.  On 20 October 1995, a General Court-Martial (GCM) found the applicant guilty of violating Article 107 of the Uniform Code of Military Justice (UCMJ) by making a false official statement on or about 8 January 1995; and of three specifications of violating Article 121 of the UCMJ by committing larceny of military property valued at more than $100.00 on divers occasions between on or about January 1994 and January 1995.  The resulting sentence from the military judge was a dishonorable discharge (DD), confinement for 68 months, forfeiture of all pay and allowances and reduction to private/E-1 (PV1).  The sentence was approved by the convening authority in Headquarters, Fort Carson, Fort Carson, Colorado, GCM Order Number (#) 3, dated 14 February 1996, except for the portion of confinement in excess of five years, which was suspended for 5 years at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.    


5.  On 4 October 1996, Headquarters, Fort Carson, Fort Carson, Colorado,   GCM Order # 82 confirmed the applicant's sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, that the DD portion of the sentence be duly executed.  On            5 November 1996, the applicant was discharged accordingly. 

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued on the date of his discharge shows he completed a total of 9 years, 7 months, and 10 days of creditable active military service and accrued 380 days of time lost due to confinement.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a DD or bad conduct discharge (BCD).  It stipulates, in pertinent part, that a Soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

8. 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 contention that his overall record of service and post service conduct should be considered and his DD should be upgraded was carefully considered.  However, by law, any redress by this Board of the finality of a 
court-martial conviction under the UCMJ, 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.  

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement and although his post service conduct is noteworthy, his overall record of service is not sufficiently meritorious to support an upgrade of his DD given the number and gravity of the offenses that resulted in his GCM conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.  

3.  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.




      _______ _   _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)                                         AR20090006340



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ABCMR Record of Proceedings (cont)                                         AR20090006340


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