IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110013825 


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.  The applicant states:

* he wants his discharge upgraded to get a better job, take care of his family, and give back to the community
* he was wrong 25 years ago when this event happened, but now he is a changed man and into God
* he has not been in trouble in 25 years and he has been a law abiding citizen since his discharge
* he was young and made wrong decisions, but he paid for his mistakes

3.  The applicant provides:

* three character-reference letters
* Army Good Conduct Medal Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 was born on 19 February 1962.  He enlisted in the Regular Army on 8 December 1982 for a period of 3 years at 20 years, 9 months, and 20 days of age.  He completed his training and was awarded military occupational specialty 64C (motor transport operator).  He extended his 3-year enlistment on 12 July 1984 for a period of 22 months.

3.  He received the Army Good Conduct Medal for the period 8 December 1982 to 7 December 1985.

4.  On 2 December 1986 while serving in Germany, he was convicted by a general court-martial of wrongful appropriation of a government vehicle, sodomy by force and without consent, and kidnapping.  He was sentenced to confinement for 7 years, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.  On 27 January 1987, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 52 months, forfeiture of all pay and allowances, and reduction to E-1.

5.  On 29 May 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his petition for review on 19 February 1988.

6.  On 26 April 1988, the convening authority ordered the dishonorable discharge to be executed.

7.  On 13 May 1988, the applicant was dishonorably discharged as a result of court-martial under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He completed 3 years, 11 months, and 24 days of creditable active service with lost time from 2 December 1986 to 13 May 1988.

8.  He provides three character-reference letters from a State Senator and two pastors who attest that he:

* has great character and moral values
* has a strong work ethic within the community while maintaining integrity 
* is dependable, reliable, hard-working, conscientious, honest, peace-loving, and courteous
* displays a likeable and approachable demeanor and indicates a consistent desire to be the best he can be for his family

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

	a.  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.

	b.  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.

	c.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.  He contends he was young and made the wrong decisions.  However, age is not a sufficiently mitigating factor.  He was nearly 21 years of age when he enlisted and he successfully completed training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  He wants his discharge upgraded to get a better job.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

3.  He contends he has not been in trouble and he has been law abiding since his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The character-reference letters submitted on behalf of the applicant are laudable; however, they fail to show his discharge was unjust and should be upgraded.

5.  A trial by court-martial was warranted by the gravity of the offenses charged.  His 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.

6.  His record of service included one general court-martial conviction for serious offenses and lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general 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 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)                                         AR20110013825



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ABCMR Record of Proceedings (cont)                                         AR20110013825



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