IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100016471 


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 an honorable discharge.

2.  He states he is not disputing the punishment he received, he only wishes to prove his loyalty to the United States.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 January 1988
* U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, Certificate of Release from Parole, dated 3 November 1989
* District of Kansas Probation Office memorandum, dated 13 December 1989
* five letters of support from family members and friends
* 13 Certificates of Recognition with dates from June 1989 to April 2005
* 12 Medical Course Completion Certificates with dates from July 1989 to June 2006
* Texas Department of Health, Nurse Aid Registration Certificate, dated 5 September 1991


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 25 September 1975 and successfully completed basic and advanced individual training.  He was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  On 3 December 1986, he was convicted in accordance with his pleas by a general court-martial of sodomy with a child under 16 years of age.  His approved sentence consisted of a forfeiture of all pay and allowances, confinement for 3 years, and a dishonorable discharge.

4.  On 12 June 1987, the U.S. Army Court of Military Review considered his appeal and found the findings and sentence were correct in law and fact and affirmed the findings and sentence.

5.  On 18 September 1987, the U.S. Court of Military Appeals denied the applicant's petition for review.

6.  U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, General Court-Martial Order Number 455, dated 11 December 1987, directed that the applicant's dishonorable discharge be executed.

7.  On 22 January 1988, he was separated from the Army with a dishonorable discharge pursuant to his court-martial sentence.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial.  It states that discharge will be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

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.  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 states he is not disputing the punishment he received, he only wishes to prove his loyalty to the United States.  The evidence of record shows he received a general court-martial conviction for sodomy with a child under 16 years of age.  There is no evidence to show the general court-martial conviction was improper or that the punishment was too harsh.

2.  His post-service conduct and achievements are noteworthy.  However, good post-service conduct and achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct and achievements are not sufficient to mitigate his indiscipline in the Regular Army.

3.  The evidence of record confirms his trial by court-martial was warranted by the gravity of the offense for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change the severity of the sentence imposed if clemency is determined to be appropriate.
5.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offense for which he was convicted, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.

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 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)                                         AR20100016471



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ABCMR Record of Proceedings (cont)                                         AR20100016471



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