IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013447 


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:

* He takes responsibility for his crime
* He knows and understands what he did was wrong and wishes it had not happened
* He has no excuses for his actions
* He was the only one responsible and served his time
* He did not seek to discredit the Uniform Code of Military Justice by screaming command influence based on what the company executive officer stated 
* The specialist was an innocent victim of his anger and frustration at himself

3.  The applicant provides:

* Seven certificates of training dated between 1991 and 2009
* His Associate's Degree Diploma
* Certificates from the City of Kansas Community College
* His military awards
* His honorable discharge certificates
* Certificates of active duty training


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 record shows that he enlisted in the Regular Army on 27 July 1976.  He submitted three certificates showing he was honorably discharged on the following dates:

* 7 May 1980
* 28 February 1983
* 26 July 1988

3.  On 6 December 1988, the applicant pled guilty at a general court-martial (GCM) to one charge of attempted murder, one charge of sodomy, and one charge of housebreaking.  He was found guilty of the aforementioned offenses.

4.  The court sentenced the applicant to a forfeiture of all pay and allowances, to be confined for 15 years, and to be discharged with a dishonorable discharge.  The convening authority approved the sentence and after appellate review, directed the execution of the discharge.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 October 1989, under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 3, by reason of court-martial - other, with a reentry eligibility code of 4.  This DD 214 Form further lists the applicant's character of service as dishonorable and shows he received the following awards:

* Good Conduct Medal (4th award)
* Army Commendation Medal (ARCOM)
* Army Achievement Medals (AAM )(2nd Oak Leaf Cluster)
* Army Service Ribbon
* Overseas Service Ribbon
* Noncommissioned Officer Development Ribbon with Numeral 2
* Drivers and Mechanics Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

6.  The applicant submitted copies of his military awards to include:

* One AAM
* Three ARCOMs
* Three Certificates of Achievement

7.  The applicant provided the following certificates documenting his post-service training:

* Twenty-one certificates of training, dated from March 1989 through June 2009
* His Associates of Applied Science Degree, dated May 1994
* Two certificates of course completion, dated 1993 and 1996 respectively

8.  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.

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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's post-service achievements are commendable.  However, his post-military service has no bearing on his previous active duty service. 

2.  The evidence of record shows the applicant was convicted by a GCM and he received a dishonorable discharge.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.

3.  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.  Given the applicant's undistinguished record of service and 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.

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)                                         AR20100013447



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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