IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100018849


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 was intoxicated at the time he gave his statement to the military police
* the female that he allegedly assaulted clearly admitted she had relations with several males prior to leaving Boston
* he had been drinking alcohol for a number of hours when he was interrogated by the military police
* he told the truth and his statement was turned around to fit the female's statement
* his attorney said nothing about the facts he gave and which she admitted, except that portion of the facts she lied about
* he was charged because the alleged victim was white which was blatantly told to him after his trial
* the military judge told him he was sentencing him to only 4 years and 6 months because he did not believe the female's testimony
* his panel of jurors were white
* he needs assistance because he is telling the truth

3.  The applicant provides no additional evidence.


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 for 3 years on 18 November 1977 with prior enlisted service in the Missouri Army National Guard.  He completed training as a crawl tractor operator and was promoted through the ranks to specialist (E-4).

3.  On 5 May 1978, nonjudicial punishment was imposed against the applicant for striking a Soldier and communicating a threat to kill another Soldier.

4.  On 30 January 1979, the applicant was convicted contrary to his pleas by a general court-martial of raping and communicating a threat to a private (E-1).  He was sentenced to the following:

* dishonorable discharge
* confinement at hard labor for 4 years and 10 months
* reduction to pay grade E-1
* forfeiture of all pay and allowances

5.  The convening authority approved the sentence as adjudged on 24 April 1979.  The U.S. Army Court of Military Review affirmed the findings and sentence.  The U.S. Court of Military Appeals denied his petition for review on 16 June 1980.  The convening authority ordered the dishonorable discharge executed on 19 July 1980.

6.  On 5 September 1980, the applicant was dishonorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a duly-approved and affirmed general court-martial conviction.

7.  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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, they are not substantiated by the evidence of record.

2.  There is no evidence in the available record and he has not submitted any evidence to show error or injustice in the type of discharge he received.

3.  The available evidence shows he was convicted by a general court-martial of raping and communicating a threat to a private.

4.  There is no evidence in the available record that substantiates any of the contentions he now makes.  Absent evidence to the contrary, it must be presumed that what the Army did in his case was correct.

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.  Given the applicant's record of service and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100018849



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