IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100012697 


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 general discharge under honorable conditions.

2.  The applicant states he is currently a homeless veteran.  Since he was released from his incarceration 8 years ago he has been a productive member of society, trying to work and maintain a stable lifestyle.  He states he was just too immature to know any better.  He now has a new family and requests that the Board consider his three previous honorable discharges and change his one dishonorable discharge.

3.  The applicant provides copies of:

* a letter from the Inmate Personnel Officer, U.S. Disciplinary Barracks, Fort Leavenworth, KS
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 10 January 1992

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 military personnel records show he enlisted in the Regular Army on 6 July 1978 for a period of 3 years at 19 years of age.  He completed basic combat and advanced individual training and was awarded military occupational specialty 16P (Chaparral Crewmember).

3.  The applicant reenlisted on 1 February 1982 for a period of 3 years and on 7 March 1985 for a period of 6 years.  He was promoted to staff sergeant/pay grade E-6 on 26 November 1983.

4.  On 24 August 1989, the applicant pled guilty and was found guilty before a general court-martial of:

* drunken driving on 4 March 1989
* wrongfully operating a privately-owned vehicle while his license was revoked on 4 March 1989
* wrongfully leaving the scene of an accident on 4 March 1989
* conspiracy to obstruct justice on 6 March 1989
* soliciting another to obstruct justice on 6 March 1989
* attempted unpremeditated murder on 15 May 1989
* two specifications of assault with a loaded firearm on 15 May 1989
* assault consummated by battery on 23 April 1989
* wrongfully appropriating an M-16 rifle, military property of a value of more than $100.00, on 15 May 1989
* wrongfully appropriating ammunition, military property of less than $100.00, on 29 April 1989
* housebreaking with intent to assault with a dangerous weapon on 15 May 1989
* damaging military property of the United States through neglect, damage being less than $100.00, on 23 April 1989
* willfully damaging military property of the United States, damage being more than $100.00, on 15 May 1989
* willfully damaging military property of the United States, value of more than $100.00, on 15 May 1989
* willfully disobeying a lawful order of a superior commissioned officer on 15 May 1989
* unlawfully carrying a concealed weapon on 15 May 1989

5.  His sentence consisted of a dishonorable discharge, forfeiture of all pay and allowances, confinement for 24 years, and reduction to pay grade E-1.

6.  On 6 December 1989, the convening authority approved the sentence, but the execution of that part of the sentence adjudging confinement in excess of 23 years was suspended for 6 months at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.

7.  On 15 April 1991, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 1 August 1991, the U.S. Court of Military Appeals denied the applicant's petition for review of the decision of the U.S. Army Court of Military Review.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 391, dated 9 December 1991, ordered the applicant's dishonorable discharge executed.

10.  On 10 January 1992, the applicant was discharged as a result of a court-martial with a dishonorable discharge.  The applicant had 614 days of lost time and 304 days of lost time after normal expiration of service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

12.  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 requests that his dishonorable discharge be upgraded.  He contends that he was too young and immature at the time.  He states he has been a productive member of society since his release from incarceration.  He requests that the Board consider his previous honorable discharges and upgrade his dishonorable discharge.

2.  The applicant was 19 years of age when he first enlisted in the Army.  He had been promoted to staff sergeant, a position of authority and responsibility.  In promoting the applicant to staff sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  The applicant violated this special trust and confidence.

3.  At the time of his offenses the applicant was 29 years of age.  Therefore, the applicant's age and maturity were not considered mitigating factors in the determination of this case.

4.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was 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.

5.  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.

6.  The applicant's statement concerning his post-service achievements and conduct was noted.  However, good post-service conduct alone is not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.  Given the seriousness of the offenses for which he was convicted, the applicant's post-service conduct was not considered sufficiently mitigating to warrant clemency in this case.

7.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor that would warrant special recognition.  The applicant's previous honorable discharges issued on 31 January 1982 and 6 March 1985 were noted.  However, the gravity of the offenses for which the applicant was convicted overrides his previous periods of honorable service.  Given the magnitude of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his 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)                                         AR20100012697



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ABCMR Record of Proceedings (cont)                                         AR20100012697



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