IN THE CASE OF:	  

		BOARD DATE:	    1 March 2011

		DOCKET NUMBER:  AR20100020921 


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, in effect, correction of his records to show he was honorably retired instead of being dishonorably discharged by a court-martial.

2.  The applicant states he completed 21 years of service and retired on 5 February 1989 [sic].  His monthly retirement pension is being withheld and/or denied.  He has not received any retirement pension or medical benefits.  He has appealed on two occasions and requested release of his retirement pension by submitting the necessary paperwork.  He believes the injustice began in April 1989 when a court-martial reinstated him to active duty for trial by court-martial although he had already retired and had received a retirement check for the month of February 1989.

3.  The applicant did not provide any 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's records show he was inducted into the Army of the United States on 21 December 1967 and held military occupational specialty 94B (Cook).  He served in Vietnam from 17 July 1968 to 16 July 1969.  He was honorably released from active duty on 10 December 1969 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.

3.  His records also show he enlisted in the Regular Army on 12 January 1971 and served through multiple reenlistments or extensions.  He served in Germany and completed three tours of duty in Korea.  He attained the rank/grade of staff sergeant/E-6.  He was awarded the:

* Army Good Conduct Medal (6th Award)
* National Defense Service Medal
* Army Achievement Medal
* Army Commendation Medal (2nd Award)
* Vietnam Service Medal with three campaign stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Noncommissioned Officer Professional Development Ribbon with Numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (4th Award)
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  On 10 February 1988, he submitted a request for voluntary retirement based on completion of 20 or more years of active service effective 31 January 1989.  His request was approved on 11 February 1988.

5.  Accordingly, on 11 February 1988, Headquarters, XVIII Airborne Corps, Fort Bragg, NC, published Orders 27-100 assigning him to the U.S. Army Transition Point, Fort Bragg, NC, for out-processing effective 31 January 1989 and retiring him from active duty effective 31 January 1989.

6.  On 20 January 1989 prior to his discharge and placement on the Retired List, Headquarters, XVIII Airborne Corps, Fort Bragg, NC, published Orders 013-113 revoking his retirement orders.


7.  On 14 April 1989, he pled not guilty at a general court-martial to:

* one specification of wrongfully possessing 29 pounds, more or less, of marijuana with intent to distribute on or about 6 January 1989
* one specification of wrongfully possessing some amount of cocaine on or about 6 January 1989

8.  The court found him guilty of both specifications and sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for 5 years, and a dishonorable discharge.  The sentence was adjudged on 14 April 1989.

9.  On 8 June 1989, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

10.  On 12 October 1989, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  On 19 July 1990 on remand by the U.S. Court of Military Appeals, the U.S. Court of Military Review reconsidered the case and opined that the staff judge advocate's advice to the convening authority was correct and sufficient and that the applicant was not prejudiced by the lack of extensive discussion of the meritless issue he asserted in his post-trial submissions.

12.  On 19 November 1990 after granting a review, the U.S. Court of Military Appeals affirmed the finding and sentence.

13.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 98, dated 14 March 1991, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

14.  The applicant was discharged from the Army on 12 April 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with paragraph 3-10 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This form also shows the applicant completed a total of 20 years, 2 months, and 22 days of creditable active service and he had 728 days of lost time after normal expiration of term of service.

15.  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.

16.  Army Regulation 635-200, chapter 12 (Retirement for Length of Service), provides that a Soldier of the Regular Army who has completed 20 but less than 30 years of active Federal service in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant applied and received approval for voluntary retirement effective 31 January 1989.  However, it appears he was suspected of committing offenses which warranted that court-martial charges be preferred against him.  Accordingly, his retirement orders were revoked prior to the effective date of retirement.  He never actually retired.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant was issued a dishonorable discharge pursuant to an approved sentence of a general court-martial.  As a matter of law, the dishonorable discharge extinguished the applicant's entitlement to an honorable discharge or retired pay.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  In view of the foregoing evidence, he is not entitled to the requested relief.


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)                                         AR20100020921



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ABCMR Record of Proceedings (cont)                                         AR20100020921



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