IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090016837
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 discharge be upgraded.
2. The applicant states he is unemployed and homeless. Since being discharged he has been a model father and upstanding citizen in his community. He needs an upgrade to qualify for veterans benefits.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Salvation Army statement attesting that he is a resident of the Crossroads Shelter as of 15 July 2009.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 6 August 1991. He was trained in military occupational specialty (MOS) 63Y (track vehicle mechanic). He served in Korea and at Fort Bliss, TX.
3. The applicant's Record of Trial (ROT) is not available for review; however, on 10 March 1994, before a general court-martial, he was convicted of making a false official statement (Article 107, Uniform Code of Military Justice, (UCMJ)), wrongfully disposing of military property (Article 108, UCMJ), and four specifications of wrongful appropriation or larceny (Article 121, UCMJ). The adjudged sentence which included a dishonorable discharge was affirmed upon review on 7 June 1994. On 10 February 1995, the dishonorable discharge was ordered executed. The applicant had 2 years, 6 months, and 29 days of creditable service and 407 days of lost time.
4. For reasons unknown, the Transition Point at Fort Sill, OK issued the applicant a bad conduct discharge on 21 April 1995.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or bad conduct) pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
6. Army Regulation 635-200 provides guidance on the characterization of service and states, in pertinent part:
a. Paragraph 3-7a states 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 members 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.
b. Paragraph 3-7b states 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 Soldiers separation specifically allows such characterization.
7. 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 change a discharge due to matters which should have been raised in the appellate process, 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 committed serious acts of misconduct. His general court-martial was conducted in accordance with law and regulations and the character of the discharge he received is inexplicably less punitive than that which he was adjudged at trial.
2. The ABCMR may not disturb the finality of a conviction by court-martial.
3. The applicant's living condition is lamentable; however, he has not offered any valid reason why clemency should be granted to him in the form of a discharge upgrade to either a general or a fully honorable 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) AR20090016837
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ABCMR Record of Proceedings (cont) AR20090016837
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