IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008140 


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 an honorable discharge.

2.  The applicant states that upgrade of his discharge is needed to allow him to apply for and receive Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant had continuous active duty service in the Regular Army from
20 May 1994 until his discharge.  Except for the offenses for which he was convicted his characterization of service was honorable.

	a.  The applicant was trained in and awarded military occupational specialty 92R (Parachute Rigger).

	b.  He attained the rank of sergeant first class (E-7) on 1 June 2005 and he completed the Parachute Rigger Advanced Noncommissioned Officer Course in October 2005.

2.  The applicant was tried at a general court-martial on 14 January 2008.

   a.  He pled guilty and he was found guilty of the charge and specification of making a false official statement to a Special Agent with intent to deceive.

   b.  He pled guilty and he was found guilty of the charge and specification of larceny of military property of the United States, of a total value of about $30,580.00, on divers occasions between 15 March and 19 April 2007.

   c.  He was sentenced to reduction to the rank/grade of private (PV1)/(E-1), forfeiture of all pay and allowances, confinement for 12 months, and a dishonorable discharge from the service.

   d.  On 16 May 2008, the convening authority approved only so much of the sentence that provided for reduction to the rank/grade of PV1/E-1, confinement for 12 months, and a dishonorable discharge and, except for the part of the sentence extending to a dishonorable discharge, ordered it executed.  The automatic forfeiture of pay and allowances, which had been deferred, was terminated and waived for a period of six months with direction that the funds be paid to the wife of the applicant for the benefit of his minor children.
   
3.  On 31 July 2008, the U.S. Army Court of Criminal Appeals, on consideration of the entire record, held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

4.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 259, dated 20 November 2008, confirmed that in the general court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered executed.

5.  The applicant's DD Form 214 shows he was dishonorably discharged on
27 February 2009 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3 (Character of Service/Description of Separation), by reason of court-martial (other).  At the time of his discharge he had completed 14 years and 7 days of net active service.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 14 January through 14 October 2008.

6.  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 (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.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, section III, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

   b.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to an honorable discharge so that he may receive DVA benefits.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the DVA.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  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 this requirement.

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)                                         AR20100008140



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ABCMR Record of Proceedings (cont)                                         AR20100008140



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