IN THE CASE OF:	  

		BOARD DATE:	    22 November 2011

		DOCKET NUMBER:  AR20110010405 


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 upgrade of his dishonorable discharge to an honorable discharge.  He further requests that his prior enlistments/reenlistments be separated from his last reenlistment for issuance of separate DD Forms 214 (Certificate of Release or Discharge from Active Duty) for each period of service.

2.  The applicant states:

	a.  He served in the Army for over 10 years and he achieved the rank/grade of staff sergeant (SSG)/E-6 with the potential for making sergeant first class (SFC)/E-7.  He was wrongfully accused of having sexual contact with two of his stepchildren and his own daughter, all of whom were under the age of 16.  Prior to his court-martial, he was advised by his military attorney to accept a plea bargain even though he told his lawyer he was not guilty.  He lied because he loved his children so much he did not want to put them through a long and humiliating ordeal.  Even today he claims he was not guilty.  He lost his career, rank, family, and almost 5 years of his freedom for a crime he is innocent of. 

	b.  His first enlistment and reenlistments were honorable and he was issued DD Forms 214 for each of those enlistments.  However, when he requested copies of his DD Forms 214 all of his years of service were grouped together on one DD Form 214.  He does not understand how his periods of honorable service can be affected by the last one.


3.  The applicant provides:

* his DD Form 214
* a handwritten statement
* three letters of support
* a State of North Carolina Criminal Record Search

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 (RA) on 31 March 1976 and he held military occupational specialty 16S (Man Portable Air Defense System Crewmember).  He was last assigned to 2nd Battalion, 5th Air Defense Artillery, 2nd Armored Division, Fort Hood, TX.  He was promoted to SSG/E-6 on 9 October 1983.

3.  General Court-Martial Order Number 13, issued by Headquarters, 2nd Armored Division, Fort Hood, TX, dated 8 May 1987, shows he pled guilty and he was found guilty at a general court-martial of one specification each of the following:

* Carnal knowledge with a child under age 16 on diverse dates between July 1884 and June 1986
* Sodomy with a child under age 16 on diverse dates between November 1984 and June 1986 
* Sodomy with a child under age 16 on diverse dates between July 1984 and June 1986

4.  This court-martial order also shows he was sentenced to a dishonorable discharge, confinement for 15 years, forfeiture of all pay and allowances, and 


reduction to private (PV1)/E-1.  The convening authority approved the sentence and ordered the sentence adjudging confinement in excess of 7 years and 6 months suspended for 2 years and, unless vacated sooner, would be remitted without further action.  The convening authority ordered the sentence executed, except the portion extending to the dishonorable discharge.

5.  The U.S. Army Court of Military Review affirmed the findings and sentence on 22 October 1987.  The U.S. Army Court of Military Appeals denied his petition for review on 29 December 1987.

6.  On 1 April 1988, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, as a result of court-martial with a dishonorable characterization of service.  He completed 10 years, 11 months, and 9 days of active military service.

7.  Item 18 (Remarks) of his DD Form 214 contains the entry "Immediate reenlistments this period:  760331 - 791017, 791018 - 820830, 820831 - 850604."

8.  The applicant provides three letters of support, dated 7, 8, and 9 May 2009, wherein three acquaintances stated the applicant was a hard worker, a positive role model, and a good man who is involved in church work.

9.  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.

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.

11.  Army Regulation 635-200, paragraph 3-10, provides 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.

12.  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.

13.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  Prior to 1 October 1979, a separate DD Form 214 was prepared for all personnel at the time of retirement, discharge, or release from active duty. However, subsequent to this date:

	a.  Paragraph 2-1b(2) states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

	b.  Paragraph 2-4h(18) for item 18, use this block for HQDA mandatory requirements when a separate block is not available.  Subparagraph (c) states for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates).  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter in item 18 "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, 
confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted.



2.  After a review of the applicant's overall record of service, it is clear his service did not meet the criteria for an honorable or a general discharge.  Therefore, there is an insufficient evidentiary basis for granting the applicant's request for a discharge upgrade.

3.  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.  The type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  The applicant's record shows he enlisted in the RA on 31 March 1976 and reenlisted on 18 October 1979, 31 August 1982, and 5 June 1985 without a break in service.  Therefore, he is not authorized separate DD Forms 214 for his initial period of enlistment and subsequent periods of reenlistment because DD Forms 214 are not issued when there is no break in service.  However, he is entitled to correction of item 18 of his DD Form 214 to show his periods of continuous honorable active service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 of his DD Form 214 the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19760331 UNTIL 19850604."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his dishonorable discharge to 


either an honorable or a general discharge and issuing him separate DD Forms 214 for his first enlistment and subsequent reenlistments.



      _______ _   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)                                         AR20110010162



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ABCMR Record of Proceedings (cont)                                         AR20110010405



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