IN THE CASE OF:	  

		BOARD DATE:	    12 July 2012

		DOCKET NUMBER:  AR20110024696 


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 a general discharge.

2.  He states the incident was a terrible misunderstanding and a lack of judgment, but he owned up to his mistake.  He adds that it was never his intent to harm the young lady.  He states it was his first offense and for 17 years since the incident, he has never been in trouble again.  He offers his civilian career as a contractor with the Army and certificates and commendations he received after his discharge as support of his post-service accomplishments.

3.  He provides the following:

* Seven supporting statements 
* Five certificates of appreciation
* A letter of appreciation

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.  His record shows he enlisted in the Regular Army on 11 January 1989.  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.  

3.  General Court-Martial Order Number 7 published by Headquarters, VII Corps, dated 13 September 1991, shows he was found guilty at a general court-martial of Article 120 of the Uniform Code for Military Justice (UCMJ), rape.

4.  On 13 June 1991, the following sentence was adjudged:

* reduction to the grade of private/E-1
* confinement for 8 years
* a forfeiture of all pay and allowances
* dishonorable discharge

5.  On 13 September 1991, only so much of the sentence as provided for a dishonorable discharge, reduction to the grade of private (E-1), forfeiture of all pay and allowances, and confinement for 5 years was approved, and except for the dishonorable discharge, was ordered to be executed.  The execution of that part of the sentence extending to confinement in excess of six months was suspended for one year.

6.  On 23 January 1992, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

7.  General Court-Martial Order Number 109 published by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 14 April 1994, shows the remainder of the applicant's sentence had been finally affirmed and the appropriate authority ordered the dishonorable discharge duly executed.  

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 May 1994 under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), due to conviction by a court-martial.  This form also shows his character of service as "Dishonorable."


9.  The seven supporting statements submitted by the applicant speak highly of his character.  His supervisors and the Marines he worked with stated that he was a selfless worker who was willing to go the extra mile to ensure the job was completed.  They praised his performance and said he was a team player.  

10.  The certificates and letter of appreciation he provided recognized his outstanding support to the mission and indicated that he was a hard worker who provided selfless service.

11.  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.  

12.  Army Regulation 635-200 provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a special or general court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

13.  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 trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations. 

2.  The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.

3.  Additionally, the fact that he has received numerous certificates of appreciation for his outstanding accomplishments and letters attesting to his dedication and work ethics is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

4.  Therefore, there is no basis for granting his 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)                                         AR20110024696





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ABCMR Record of Proceedings (cont)                                         AR20110024696



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