IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090009094 


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 his dishonorable discharge be upgraded to a bad conduct discharge or an honorable discharge. 

2.  The applicant states, in effect, that he would appreciate it if the Board would upgrade his discharge because he was age 19 at the time.  He is now age 
39 and has been diagnosed as having bipolar disorder.  He adds that there is no error in his record he just wants his discharge upgraded. 

3.  The applicant provides a copy of his basic combat training certificate, dated 26 October 1989, in support of his request. 

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 records show he was born on 21 October 1970 and he enlisted in the Regular Army on 22 August 1989 for a period of 3 years at age 
18.  He completed the training requirements and he was awarded military occupational specialty 16S (ManPortable Air Defense Artillery System Crewmember).  He was assigned to the 3rd Battalion, 62nd Air Defense Artillery, Fort Drum, NY.  

3.  On 28 March 1990, the applicant pled not guilty at a General Court-Martial to one specification of attempted rape on or about 6 January 1990.  He also pled guilty to one specification of wrongfully communicating a threat to injure a female on or around 6 January 1990 and one specification of being disrespectful in language towards a superior noncommissioned officer on or about 24 January 1990.  The Court found him guilty of all specifications and sentenced him to confinement for 4 years, a forfeiture of all pay and allowances, and a dishonorable discharge.  The sentence was adjudged on 28 March 1990. 

4.  On 15 May 1990, the convening authority approved the sentence and except for that part of the sentence extending to the dishonorable discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On 8 January 1991, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 371, dated 1 November 1991, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant’s dishonorable discharge sentence executed.

7.  The applicant was discharged from the Army on 29 November 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with paragraph 3-10 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a dishonorable discharge.  This form also shows the applicant completed a total of 7 months and 6 days of creditable active service and he had 612 days of lost time.

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.

9.  Army Regulation 635-200 governs 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.  .

10.  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.

11.  Army Regulation 635-200, paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a General Court-Martial and that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a General or Special Court-Martial. The appellate review must be completed and the affirmed sentence ordered duly executed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to an honorable or a bad conduct discharge.

2.  The evidence of records shows the applicant was 18 years and 10 months of age at the time of his enlistment and 19 years of age at the time of committing his offense.  However there is no evidence that the applicant was any less mature than other Soldiers of the same age who honorably completed their term of service or that his actions were a result of his age. 

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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 was given a dishonorable discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  Therefore, he is not entitled to an upgrade of his discharge. 

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)                                         AR20090009094



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ABCMR Record of Proceedings (cont)                                         AR20090009094



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