IN THE CASE OF:
BOARD DATE: 24 August 2010
DOCKET NUMBER: AR20100008973
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 that his dishonorable discharge be upgraded to a more favorable discharge.
2. The applicant states that it has been almost 16 years since his discharge. He was 19 years of age and at the time did not think about anything affecting his life this long. He goes on to state that he is an active civilian in the community and has held jobs that pay employment taxes. He has kept his criminal record clean and is currently employed in an emergency medical position. He continues by stating he would like to be a fireman and they want a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
3. The applicant provides a copy of a criminal records check done in connection with a firefighter 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 was born on 20 September 1993 and enlisted in the Regular Army on 10 February 1993 at 19 years of age for a period of 3 years, training as a fighting vehicle infantryman, and assignment to Korea. He completed his one-station unit training at Fort Benning, Georgia, and was transferred to Korea on 30 June 1993. He was advanced to pay grade E-2 on 10 August 1993.
3. On 19 February 1994, he was convicted by a general court-martial of aggravated assault with intent to inflict grievous bodily harm. He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined for 30 months, and to be discharged from the Army with a dishonorable discharge. The convening authority approved the sentence, but suspended that part of the sentence adjudging confinement in excess of 24 months for a period of 12 months unless sooner vacated.
4. On 19 January 1995, General Court-Martial Order Number 7 published by Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, announced that the findings and sentence approved by the general court-martial convening authority had been affirmed and directed that his dishonorable discharge be executed.
5. On 2 February 1996, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 1 year, 3 months, and 29 days of total active service and had approximately 492 days of lost time due to confinement.
6. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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 trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2. The type of discharge directed and the reasons are appropriate considering the available facts of the case.
3. The applicant's contentions and supporting documents have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.
4. 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) AR20100008973
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ABCMR Record of Proceedings (cont) AR20100008973
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