IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100013343 


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 an upgrade of his dishonorable discharge.

2.  The applicant states he has paid for his crime by spending time in prison and it is a breach of the rules to punish him forever with this type of discharge.  Prior to his offense his military record was outstanding.  His dishonorable discharge is a life sentence that denies him the benefits that he earned while in the Army.  He also states he had one of the highest skill qualification test scores in the battalion for his military occupational specialty and he was on the E-6 promotion standing list.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 records show he enlisted in the Regular Army (RA), in pay grade E-1, on 13 October 1976.  He completed training and he was awarded military occupational specialty 67U (Medium Helicopter Repairer).  He served in Korea from 13 April 1977 through 12 April 1978.  He was promoted to pay grade E-5 on 27 January 1979.  

3.  He was honorably discharged from active duty for the purpose of immediate reenlistment on 22 May 1979.  He reenlisted in the RA on 23 May 1979 for 6 years.  He again served in Korea from 26 May 1982 through 18 May 1983.

4.  On 28 May 1985, he was convicted in accordance with his pleas by a general court-martial of one specification of committing sodomy on a child under the age of 16 from on or about 20 June 1983 until on or about January 1985 and one specification of committing indecent acts upon the body of his daughter, a female under the age of 16, from on or about 20 June 1983 until January 1985.  He was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 10 years, and a dishonorable discharge.

5.  On 7 November 1985, the convening authority approved the sentence and, except for the dishonorable discharge, ordered the sentence duly executed.  The part of the sentence adjudging confinement in excess of 90 months was suspended for 90 months unless sooner vacated and it would be remitted without further action.

6.  On 25 July 1986, the U.S. Army Court of Military Review modified the findings of guilty of the specification of Charge II (committing indecent actions upon the body of his daughter).  The court affirmed the modified findings and approved sentence.  

7.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Orders Number 283, date 11 September 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the dishonorable discharge duly executed.

8.  He was discharged accordingly on 16 October 1987 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial, with a dishonorable discharge.  He was credited with 6 years, 5 months, and 14 days of net active service during the period under review and had time lost from 7 November 1985 to 16 October 1987.  

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 stated a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

10.  Army Regulation 635-200, paragraph 3-7a, also provided an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, further provided a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

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 change a discharge due to matters which should have been raised in the appellate process, 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 evidence shows the applicant was convicted by a general court-martial, in accordance with his pleas, of sodomy with a child under the age of 16 and indecent acts with a child under the age of 16.  The U.S. Army Court of Military Review affirmed the finding of guilty and the sentence.  He was subsequently discharged pursuant to the sentence of a general court-martial and he was issued a dishonorable discharge after his sentence was affirmed.

2.  Trial by a general court-martial was warranted by the gravity of the offenses charged.  A dishonorable discharge is adjudged by a court-martial when it determines a Soldier should be discharged for dishonorable conduct.  The evidence of record shows his offenses warranted this punishment.

3.  The applicant has not submitted evidence to show that his discharge is unjust. There is no error or injustice apparent in his record.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to general or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations, with due process, and with no violation of his rights.  

4.  Any redress by ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Notwithstanding the applicant's record of service up until the time of the offenses, the serious nature of his offenses and the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing evidence, he is not entitled to an upgrade of 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)                                         AR20100013343



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ABCMR Record of Proceedings (cont)                                         AR20100013343


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