IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028853 


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 discharge be upgraded.

2.  The applicant states, in effect, all of his military records show his performance was outstanding.  He had at least four honorable discharges, awards, medals, and quite a few letters of appreciation in his records.  He is requesting an upgrade of his discharge due to health problems that are related to his military service.  He states he is 70 percent disabled.  He contends he tried to make amends with his chain of command and to others whom his actions impacted.  He is remorseful for his actions.

3.  The applicant provides an employment verification letter.

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 8 September 1976 and continued to serve on active duty through a series of reenlistments.  

3.  On 13 August 1996, he was found guilty by a general court-martial of 
4 specifications of conspiracy to commit larceny, 18 specifications of larceny of U.S. currency property of the U.S. Government, 18 specifications of filing false claims against the U.S., 3 specifications of perjury, and 1 specification of communicating a threat.  He was sentenced to reduction to the rank of private/
E-1, a forfeiture of all pay and allowances, confinement for 5 years, and to be dishonorably discharged from the service.

4.  On 1 October 1996, the sentence was approved and except for the part of the sentence extending to a dishonorable discharge the sentence was ordered executed.

5.  On 17 July 1997, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence.

6.  On 19 February 1998, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered executed.

7.  Accordingly, on 13 March 1998, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial with a dishonorable discharge.

8.  He provided an employment verification letter that shows he has been employed by his current employer since 25 February 2008 and he has proven to be a very reliable and honest employee.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel and provides in:

	a.  Chapter 3 that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

	b.  Paragraph 3-7a, 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.

	c.  Paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his dishonorable discharge should be upgraded because his performance was outstanding prior to the discharge offenses and because he has health problems that are service related.

2.  The ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for medical benefits.

3.  The applicant's trial by court-martial was warranted due to the gravity of the offenses for which he was convicted.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  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 seriousness of his criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.

5.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  There is no evidence that the applicant was suffering from any medical conditions at the time of discharge.

7.  In view of the above, 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)                                         AR20100028853



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ABCMR Record of Proceedings (cont)                                         AR20100028853



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