IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009538 


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 upgrade of his dishonorable discharge.

2.  The applicant states:

* The type of discharge (dishonorable) should not have been awarded in his case
* The other people involved in his case were not given the same discharge for the same crime 
* A dishonorable discharge is only given for horrid types of crime not for check fraud 

3.  The applicant provides four pages from his record of trial 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 enlisted in the Regular Army on 24 September 1992 and served as a combat engineer. 

3.  On 1 September 1993, a bar to reenlistment was imposed against the applicant.  His DA Form 4126-R (Bar to Reenlistment Certificate) shows on 
6 May 1993, nonjudicial punishment was imposed against the applicant for violating a direct order, violating the Georgia State Law against drinking under the age of 21, and being absent from his appointed place of duty.  His punishment consisted of extra duty and restriction.   

4.  On 22 December 1993, the applicant was convicted, pursuant to his pleas, by a general court-martial of conspiring with three Soldiers to steal lawful currency of a value of $900.00 from the First Alabama Bank, two specifications of stealing lawful currency from the First Alabama Bank, stealing blank checks, and two specifications of forgery.  He was sentenced to be confined for 20 months, to be reduced to E-1, to forfeit all pay and allowances, and to be discharged from the service with a dishonorable discharge.  On 9 February 1994, the convening authority approved only so much of the sentence as provided for confinement for 11 months, to be reduced to E-1, to forfeit all pay and allowances, and to be discharged with a dishonorable discharge.

5.  The decision of the U.S. Army Court of Military Review is not available.  However, on 7 February 1995, the convening authority ordered the dishonorable discharge to be executed, indicating the sentence was affirmed.

6.  Accordingly, the applicant was discharged with a dishonorable discharge on 28 February 1995 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 1 year, 7 months, and 4 days of creditable active service with 307 days of lost time.  

7.  In support of his claim, the applicant provided four pages from his record of trial which address the closing arguments (i.e., type of discharge, sentence, and the sentences of the others involved) from his defense counsel. 

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
9.  Army Regulation 635-200, 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.

10.  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.

11.  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 the type of discharge (dishonorable) should not have been awarded in his case and the other people involved in his case were not given the same discharge for the same crime relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the court-martial appellate process.  He provides insufficient evidence to show his sentence was inequitable compared to the sentence received by the other defendants. 

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service included one nonjudicial punishment, a bar to reenlistment, one general court-martial conviction for serious offenses, and 307 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an 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)                                         AR20100009538





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)