IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110012582


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 either an under honorable conditions (general) discharge or an honorable discharge.

2.  The applicant states he received an honorable discharge prior to his first reenlistment and he had an excellent record of service prior to his dishonorable discharge.  He states his request is made so that he can pursue professional and educational opportunities.  He concludes by stating the amount of elapsed time since his discharge should be a consideration in granting the requested relief.

3.  The applicant provides no 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 enlisted in the Regular Army on 23 November 1984.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  On 24 August 1987, he reenlisted for 3 years.  He served in various positions and attained the rank/pay grade of specialist four/E-4.

3.  At a general court-martial at Fort Eustis, VA, he pled guilty to multiple specifications of three separate charges as follows:

* 4 specifications of Charge 1 – for violating Article 121 of the Uniform Code of Military Justice (UCMJ) by committing larceny 
* 3 specifications of Charge 2 – for violating Article 129 of the UCMJ by unlawfully breaking and entering the dwelling of another with intent to commit larceny
* 1 specification of Charge 3 – for violating Article 130 of the UCMJ by unlawfully entering the dwelling of another with intent to commit larceny

4.  On 21 August 1989, the Court found him guilty, consistent with his pleas, of all  Charges and specifications and sentenced him to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for 5 years, and a dishonorable discharge.

5.  On 5 October 1989, the convening authority approved the sentence and, except for the dishonorable discharge, ordered it executed; however, the execution of that part of the sentence adjudging confinement in excess of          36 months was suspended for one year, at which time, unless sooner vacated, the suspended part of the sentence was to be remitted without further action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

6.  On 8 February 1990, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On an unknown date in 1990, the U.S. Court of Military Appeals denied his petition for review.

7.  General Court-Martial Order Number 174, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 14 August 1990, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered his dishonorable discharge executed.

8.  On 7 September 1990, he was discharged in accordance with the directives of General Court-Martial Order Number 174.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial, with a dishonorable character of service.  

9.  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.

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.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his dishonorable discharge has been carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

3.  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.

4.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110012582



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