IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130020733 


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 and expunction of his court-martial conviction.

2.  The applicant states he was attacked by two individuals at a drive-through restaurant following a minor vehicle bump.  He defended himself and beat up the two individuals.  He was arrested by civil police in Killeen, TX, but he was released from jail 30 days later when the issue was sorted out.  Shortly upon his release, the military arrested him and convicted him by a general court-martial of assault.  He spent 6 3/4 years in jail at the U.S. Disciplinary Barracks.

3.  The applicant provides his 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's records show he enlisted in the Regular Army on 25 September 1981 and he held military occupational specialty 12B (Combat Engineer).  

3.  He served in Korea from 13 July 1983 to 13 July 1984 and in Panama from 2 January 1986 to 27 October 1989.

4.  His records show he was promoted to sergeant (SGT)/E-5 on 22 June 1984, reduced to specialist/E-4 on 24 July 1987, and again promoted to SGT/E-5 on 1 September 1989.  He was last assigned to Fort Hood, TX.

5.  On 18 September 1990, he departed his unit in an absent without leave status.  On 27 September 1990, he was confined by civil authorities at the Bell County Jail, Belton, TX.  He was released from civil confinement on 12 October 1990 at 1530 hours and he was subsequently placed in pre-trial military confinement at Fort Hood, TX, at 1645 hours.

6.  On 15 January 1991, he was arraigned at a general court-martial at Fort Hood, TX, on the following offenses:

* charge I, specification 1 – attempted murder (plea – not guilty, finding – not guilty)
* charge II, specification 1 – absenting himself from his unit from 18 to 22 September 1990 (plea – not guilty, finding – guilty)
* charge III, specification 1 – unlawfully striking another individual (plea – not guilty, finding – not guilty)
* charge III, specification 2 – assault (plea – not guilty, finding – guilty)

7.  The court sentenced him to forfeiture of all pay and allowances, confinement for 10 years, reduction to the lowest enlisted grade, and a dishonorable discharge.

8.  On 19 June 1991, 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.

9.  On 6 August 1992, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  He was credited with 158 days towards his sentence to confinement.

10.  On 24 March 1994, the U.S. Army Court of Military Appeals ordered that the decision of the U.S. Army Court of Military Review be reversed to the extent that it denied him 14 days of additional pre-trial confinement credit and an additional 55 days of credit, for a total of 227 days of pretrial confinement credit.  In all other respects, the decision was affirmed.

11.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 150, dated 25 May 1994, shows the convening authority ordered the applicant's dishonorable discharge sentence executed after completion of all required post-trial and appellate reviews.

12.  The applicant was discharged from the Army on 24 June 1994.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 8 years, 11 months, and 23 days (including excess leave) of creditable military service.  He was awarded or authorized the Army Good Conduct Medal (3rd Award), Army Achievement Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Service Ribbon, and Overseas Service Ribbon.

13.  His Official Military Personnel File (OMPF) contains his initial court-martial orders, appellate review, and final court-martial orders.

14.  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.

15.  Army Regulation 635-200 governs the 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 3-10 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 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 characterized 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.

2.  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.

3.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now have a clean record, there is not a sufficiently compelling reason for compromising the integrity of the Army's records.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130020733



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ABCMR Record of Proceedings (cont)                                         AR20130020733



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