BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090014026 


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, upgrade of his dishonorable discharge to a general, under honorable conditions discharge.

2.  The applicant states that the only way he can receive the help he needs from Department of Veterans Affairs (VA) is to have his discharge upgraded.  He adds that he was infected with hepatitis while in the United States Disciplinary Barracks (USDB).  He offers that he has received an Associate Degree from Kansas City Community College, KS; a one-year certificate in Hotel and Restaurant Management from Johnson County Community College, KS; and several food safety and sanitation certificates.

3.  The applicant does not provide any additional 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 record shows he enlisted in the Regular Army (RA) on
15 January 1980.

3.  Headquarters, Fort Devens, MA, General Court-Martial (GCM) Order Number 3, dated 22 May 1981, shows that the applicant was found guilty of violating Article 120, of the Uniform Code of Military Justice (UCMJ), by committing rape.  His punishment consisted of a forfeiture of all pay and allowances, confinement at hard labor for 20 years, and to be dishonorably discharged.  The sentence was adjudged on 21 October 1980.

4.  On 11 February 1982, the U.S. Army Court of Military Review affirmed the findings of guilty.  However, only so much of the sentence as provided for a dishonorable discharge, eleven years of confinement at hard labor, and total forfeitures was affirmed.

5.  The applicant's DD Form 214 shows that he was dishonorably discharged on 5 August 1982.  The authority and reason were listed as chapter 11, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), as a result of court-martial.  The applicant had completed 9 months and 3 days of total active service with 286 days of lost time.

6.  The applicant's record documents no acts of valor or service warranting special recognition.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Paragraph 11-1 provided that a dishonorable discharge would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

8.  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.

9.  Court-martial convictions stand as adjudged or as 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 discharge should be upgraded in order to receive benefits from VA was considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

2.  Additionally, the fact that the applicant has accomplished so much in the pursuit of higher education is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

3.  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.

4.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge and his record reveals no acts of valor or service warranting special recognition.  Given the gravity of the offense that resulted in his GCM conviction and dishonorable discharge and based on his record of service, there is an insufficient evidentiary basis to support clemency in this case.

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)                                         AR20090014026



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ABCMR Record of Proceedings (cont)                                         AR20090014026



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