IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100020924 


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, that his dishonorable discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, his dishonorable discharge is unjust because he was court-martialed under the pretext that he was the leader of a group of Soldiers involved in a variety of juvenile crimes; however, some of those Soldiers outranked him.  He states he did not exhibit leadership during his youth and that all of his crimes were juvenile as a result of immaturity.  He wanted nothing more than to serve his country, make his parents proud, and work his way through life on a respectable path.  However, he made some terrible mistakes, due to immaturity which resulted in 4 years of punishment and 6 years on parole.  He also states he made it through another 6 years as a citizen with no civil rights violations and almost 4 more years before his civil rights were restored.  He is now a licensed general contractor and he believes it is unjust for him to carry a badge as a convicted felon with a dishonorable discharge based on juvenile crimes he has long since paid for.  

3.  The applicant provides:

* A copy of the coversheet for his record of trial
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of his Service of Post-trial Recommendations
* A copy of the Staff Judge Advocate’s Recommendations to the convening authority
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 complete record was not available for review by the Board.  However, the available records show the applicant enlisted in the Regular Army, on 22 June 1989, in Miami, Florida for a period of 2 years and 16 weeks, and training as a fire support specialist.  He completed his training at Fort Sill, Oklahoma and he was transferred to Germany for assignment to a field artillery battery.

3.  On 28 March 1991, he was convicted by a general court-martial of:

* Conspiring to commit unlawful entry with another Soldier
* Conspiring with another Soldier to commit housebreaking and larceny
* Willfully and wrongfully damaging private property in the amount of $333.33
* Stealing private property of a value of $4,316.00
* Stealing private property of a value of $533.33
* Stealing private property of a value of $4,500.00
* Unlawfully entering a furniture store with intent to commit larceny
* Willfully and wrongfully damaging private property of a value of $250.00
* Operating a passenger car in a reckless manner
* Stealing an automobile of a value of $1,000
* Stealing by means of force and violence Deutsch Marks (DM) 15.00 of a value of $10.00
* Failure to obey a lawful order from a commissioned officer
* Resisting apprehension on 17 January 1991
* Assaulting a special agent in the performance of his duties
* Assaulting a special agent in the performance of his duties with a knife


4.  He was sentenced to confinement for 10 years, a forfeiture of all pay and allowances reduction to the pay grade of E-1 and a dishonorable discharge.

5.  On 12 February 1993 he was discharged at Fort Leavenworth, Kansas pursuant to a court-martial conviction.  He had served 1 year, 7 months, and 
5 days of total active service.

6.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.    

7.  Army Regulation 635-200 governs the separation of enlisted personnel.
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.

8.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses.  Accordingly, his service does not rise to the level of a general discharge or an honorable 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)                                         AR20100020924



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020924



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1