IN THE CASE OF:	

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20100001105 


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, an upgrade of his dishonorable discharge (DD).  

2.  The applicant states, in effect, he did not commit the violation for which he was court-martialed.  The violation was committed by an officer who inventoried the arms room, signed the inventory, and secured the arms room; no one was there when the weapon was supposedly lost.

3.  The applicant provides a letter of recommendation, two Army Achievement Medal Certificates, Army Certificate of Achievement and a self authored letter in support of his application.  On 13 April 2010, the applicant submitted a 13-page letter addressed to Mr. KN from Mr. GL, and an article from the New York Times National dated 21 May 1995 concerning the Oklahoma City bomber.

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 on 1 December 1981, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 December 1983 and this is the highest rank he attained while serving on active duty.  Item 9 (Awards, Decorations, and Campaigns) shows he earned the following awards during his active duty tenure: Army Service Ribbon, Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  On 13 April 1984, the applicant received a Bar to Reenlistment Certificate.

5.  On 9 May 1984, a general court-martial (GCM) found the applicant guilty of three specifications Article 134, 121, and 108 of the Uniform Code of Military Justice (UCMJ) for wrongfully and willfully obstructing justice, and wrongfully appropriating and willfully suffering military property to be lost.  The resultant sentence was confinement at hard labor for three years, a reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, and a dishonorable discharge.

6.  On 5 July 1985, a special court-martial (SPCM) found the applicant guilty of violating Article 128 of the UCMJ for assault on a person in the execution of military law enforcement duties.  The resultant sentence was to be confined for 
5 months.

7.  On 18 October 1985, Department of the Army, United States Disciplinary Barracks, US Army Combined Arms Center, Fort Leavenworth, Kansas, GCM Order Number 325 confirmed the applicant's sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, the sentence would be duly executed.  On 
26 November 1985, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant shows he completed a total of 2 years, 4 months, and 12 days of creditable active military service and he had accrued 2 years, 7 months, and
16 days of time lost due to being AWOL and in confinement.



8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It states a Soldier will be given a DD pursuant only to an approved sentence of a GCM, and that the appellate process must be completed and affirmed before the DD portion of the sentence is ordered duly executed. 

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he did not commit the violations for which he was court-martialed, instead another individual committed the violations, were carefully considered.  However, there is insufficient evidence to support granting the requested relief.  In addition, these contentions should have been/could have been fully addressed in the evidentiary and appellate process of his court-martial.

2.  By law, any redress of the finality of a court-martial conviction under the UCMJ, is prohibited.  The ABCMR is only empowered to change the severity of the sentence imposed if clemency is determined to be appropriate.

3.  In this case, no basis has been established for clemency.  The available evidence reveals no error or injustice related to the applicant’s court-martial process and his record reveals no acts of valor, significant achievement, or service warranting special recognition given the gravity of the offenses that resulted in his GCM conviction and the issuance of the DD.

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)                                         AR20100001105



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201