IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120005678 


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 an upgrade of his dishonorable discharge to a general discharge.

2.  The applicant states although he was involved in conduct that was inconsistent with Army standards his age, environment, and overall immaturity were key elements of his actions.  He has learned from his mistakes and he has become a better person.  Additionally, during the said offense, he was not alone. Others were involved but did not receive punishment as severe as his.  Some did not receive any punishment at all.  This is not to say he did not deserve to be punished, but his punishment was excessive.  

3.  The applicant provides:

* A self-authored statement
* Two character reference letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate 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.  The applicant's records show he was born on 1 August 1968 and enlisted in the Regular Army on 28 January 1986 at age 17.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 31M (Multichannel Communications System Operator).

3.  The applicant's records also show he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  His records further show he was promoted through the ranks to private first class/E-3 and he was assigned to the 121st Signal Battalion, Fort Riley, KS. 

5.  On 22 August 1988, he pled guilty at and was convicted by a general court-martial of:

* two specifications of housebreaking with intent to commit larceny
* one specification of committing larceny 

6.  The court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 18 months, reduction to private/E-1, and a dishonorable discharge.

7.  On 21 September 1988, the convening authority approved the sentence, and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

8.  On 29 November 1988, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the approved sentence.

9.  Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, General Court-Martial Order Number 283, dated 10 March 1989, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

10.  The applicant was discharged from the Army on 5 May 1989.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 2 years, 6 months, and 22 days of creditable military service.  He had lost time from 22 August 1988 to 4 May 1989.

11.  He submitted:

	a.  A self-authored statement, dated 29 January 2012, wherein he describes the events that led to his offense and those involved.  He also blames his offense on immaturity and youth and describes some of his post-service involvement in the community. 

	b.  A character reference letter, dated 29 February 2012, from his current supervisor who describes him as intelligent, capable, and caring.  He further describes him as a good citizen and employee of the company.

	c.  A character reference letter, dated 12 March 2012, from the head of nursing in a technical college who describes the applicant as an individual who got his life back on track and sought self-improvement through education. 

	d.  A certificate of appreciation from a technical college as a token of service on an advisory committee.

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 635-200 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.


14.  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.  

15.  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 and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.

3.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  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.

4.  The evidence of record shows the applicant was age 17 at the time of enlistment and he was almost age 20 at the time of his misconduct.  However there is no evidence that shows he was any less mature than other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age.

5.  His contentions regarding his youth and immaturity as well as his post-service accomplishments and the letters he provides are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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 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)                                         AR20120005678



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ABCMR Record of Proceedings (cont)                                         AR20120005678



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