IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090006890
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 dismissal from the service be changed to reflect that he was honorably discharged.
2. The applicant states that his discharge was inequitable because it was based on an isolated incident in 28 years of an otherwise stellar career in which he was highly decorated and had no other adverse action. He also states that he is being denied Department of Veterans Affairs' benefits due to his discharge.
3. The applicant provides a 24 July 1997 letter from the Office of the Secretary of Defense with enclosures pertaining to the health risks associated with exposure to the Gulf War fires.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Oklahoma Army National Guard on 8 February 1966 and served until he was honorably discharged in the pay grade of E-6 on 14 July 1972. He enlisted in the U.S. Army Reserve (USAR) on 5 April 1974 and served until he was honorably discharged in the pay grade of E-7 on 6 December 1976 to accept a direct commission as a first lieutenant in the USAR.
2. He continued to serve in USAR units in Oklahoma and Louisiana and was promoted to the rank of lieutenant colonel on 15 August 1989.
3. On 20 September 1990, he was ordered to active duty as a Quartermaster Corps officer in support of Operation Desert Shield and was transferred to Saudi Arabia for assignment to a materiel management center.
4. On 22 April 1993, he was convicted by a general court-martial of two specifications of unlawfully selling military property, three specifications of making false official statements, and four specifications of violating a lawful general regulation. He was sentenced to forfeit all pay and allowances, to pay a fine of $65,000, confinement for 7 years, and dismissal from the service. The convening authority approved only so much of the sentence as pertained to confinement for 7 years, a forfeiture of $2,137.00 pay per month for 7 years, and dismissal from the service. He was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement.
5. On 21 July 1994, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.
6. On 24 January 1995, the U.S. Court of Appeals for the Armed Forces denied the applicants petition for a grant of review.
7. On 12 May 1995, the applicant was dismissed from the service pursuant to a duly reviewed and affirmed court-martial conviction.
8. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. A trial by court-martial was warranted by the gravity of the offenses charged. The 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.
2. The type of discharge (dismissal) directed and the reasons appear to be appropriate considering the available facts of the case.
3. The applicants contentions and supporting documents have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses. Additionally, the Board does not now nor has it ever upgraded a discharge for the purpose of qualifying for VA benefits.
4. The applicant violated the trust placed in him as a field grade officer, a Soldier, and a custodian of military supplies by selling government property for his own personal gain. Accordingly, his service does not rise to the level of a discharge under honorable conditions.
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.
____________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) AR20090006890
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ABCMR Record of Proceedings (cont) AR20090006890
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