IN THE CASE OF:	  

		BOARD DATE:	    4 May 2011

		DOCKET NUMBER:  AR20100021859 


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 his dishonorable discharge be upgraded to honorable.  

2.  He states he:

* had mental health issues during the incidents and prior to discharge
* he did not commit the offenses while on duty
* was an average Soldier 
* believes his discharge should be constituted as double jeopardy since he is considered a felon
* should have been offered mental health opportunities prior to and during his court-martial proceedings

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and letter from the Social Security Administration, dated 30 November 2008, which informed him his supplemental security Income monthly payments were being increased.  

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 14 October 1992.  

3.  On 28 October 1996, he was convicted by a general court-martial of the following offenses:

* involuntary manslaughter 
* drunk driving
* reckless driving 
* wrongful appropriation of an automobile 
* leaving the scene of an accident
* driving a vehicle without a valid driver’s license

4.  He was sentenced to a forfeiture of all pay and allowances, confinement for 10 years, reduction to private/E-1, and a dishonorable discharge.  On 28 February 1997, the convening authority approved the sentence, except for that portion of the sentence to confinement was modified to 7 years and the sentence was ordered executed except for the dishonorable discharge.  The applicant was credited with 257 days of confinement against the sentence he reveived. 

5.  The decision of the U.S. Army Court of Military Review is not available.  However, on 8 October 1997, the U.S. Court of Appeals for the Armed Forces denied his petition for review.  On 5 March 1999, his dishonorable discharge was ordered executed in General Court-Martial Order Number 38, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, which also noted his case had been affirmed and all appellate procedures were complied with.  

6.  On 2 April 1999, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3-10 as a result of court-martial with the issuance of a dishonorable discharge.  He completed 3 years and 4 months of creditable active service with over 1,000 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

8.  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.

9.  Paragraph 3-7b of Army Regulation 635-200 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.

10.  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.

11.  Double jeopardy forbids a defendant from being tried again on the same or similar charges following a legitimate acquittal or conviction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses 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.  

2.  The applicant's contentions regarding his mental health were considered.  However, he has provided no evidence to support that his mental health contributed to his misconduct which led to his conviction and discharge.  Even if so, this issue should have been addressed during the court-martial process or during the appeals process.  


3.  His service record shows he was convicted by a general court-martial of involuntary manslaughter, drunk driving, reckless driving, wrongful appropriation of an automobile, leaving the scene of an accident, and driving a vehicle without a valid drivers license.

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's 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 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)                                         AR20100021859



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ABCMR Record of Proceedings (cont)                                         AR20100021859



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