IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009

		DOCKET NUMBER:  AR20090007148 


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 an upgrade of his dishonorable discharge to an honorable discharge. 

2.  The applicant states, in effect, that he has been a good citizen, doing only good things for his family and his community since his discharge.  He has been married for over 13 years, and he has had only two employers in the past 
15 years and one employer for over 13 years.  He states he has earned an Associate’s Degree, he is working on an Emergency Medical Technician Certification and after he completes his certification he plans to get his paramedic license.  He also states that he is a regular supporter of Big Brothers/Big Sisters, Inc. and he is a member in good standing with the Oak Grove Missionary Church.

3.  The applicant provides, in support of his request, character reference letters from his minister and two other individuals, correspondence and benefits decisions from the Department of Veterans Affairs (VA) and copies of his service personnel and medical records.  

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 15 September 1986, the applicant enlisted in the Regular Army.  He completed training as a petroleum supply specialist and was advanced to pay grade E-3 on 1 December 1987.  

3.  On 15 December 1988, a general court-martial convicted him of attempted murder.  The approved sentence consisted of reduction to pay grade E-1, total forfeitures, confinement for 10 years, and a dishonorable discharge.  

4.  The convening authority approved the finding and sentence and, except for the punitive discharge, ordered the sentence executed. 

5.  On 31 January 1990, the Army Court of Military Review (ACMR) considered the arguments of the applicant's appellate defense counsel.  The evidence showed the applicant was one of a group of six individuals who went to the victim's residence to "beat this dude's ass" for informing the authorities about Private G____'s illicit activities.  The applicant grabbed a handgun from Private G____ and fired four rounds at the victim through a window and one bullet struck the victim in the neck.  The ACMR rejected the applicant's contentions that he acted in self defense and that the evidence failed to show specific intent to commit murder.  Both the finding and the sentence were affirmed. 

6.  On 16 August 1990, the U.S. Court of Military Appeals denied the applicant's request for review.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed by the United States Disciplinary Barracks and Combined Arms Command, Fort Leavenworth, Kansas.

7.  The applicant was separated with a dishonorable discharge on 7 December 1990.  He had 2 years and 3 months of net active service. 

8.  On 10 May 1991, The Acting Judge Advocate General denied the applicant's request for a new trial.  

9.  The applicant’s character reference letters indicate that the applicant is a responsible law abiding citizen, he is good provider for his family, he supports his community, and he demonstrates behavior that makes his family and country proud.
10.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

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.  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 Army Board for Correction of Military Records 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 dishonorable discharge should be upgraded due to good post-service behavior, good citizenship, and community service.  

2.  Trial by court-martial was warranted by the gravity of the offense charged.  The applicant’s court-martial conviction and discharge were effected in accordance with applicable laws and regulations, and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  Considering the horrendous nature of the offense committed, the applicant’s character reference letters to include his post service justification for an upgrade of his discharge are insufficient to establish a basis for clemency.  

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)                                         AR20090007148



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ABCMR Record of Proceedings (cont)                                         AR20090007148



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