BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140004295 


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, under honorable conditions discharge.

2.  The applicant states the act of administering and levying a dishonorable discharge was perhaps too harsh of a sentence given the gravity of the offense.  A demotion plus confinement might have been more fair.  

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 enlisted in the Regular Army on 9 June 1988 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  

3.  He served in Germany from 28 November 1988 to on or around 3 December 1989.  He was awarded or authorized the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

4.  His records further show he was promoted through the ranks to private first class/E-3 and he was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 5th Air Defense Artillery, 3rd Armored Division. 

5.  On 29 September 1989, court-martial charges were preferred against the applicant for two specifications of committing carnal knowledge with Ms. Ch----e W--b, age 14, a woman not his wife; one specification of impersonating a noncommissioned officer; and one specification of making a false statement. 

6.  On 4 October 1989, after consulting with counsel, he submitted a request for voluntary discharge in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 

7.  On 20 October 1989, the separation/convening authority disapproved his request for voluntary discharge and ordered his trial by court-martial. 

8.  On 4 December 1989, after a pretrial agreement, the applicant was convicted by a general court-martial of two specifications of violating Article 120 of the Uniform Code of Military Justice (UCMJ), carnal knowledge, and one specification of violating Article 134 of the UCMJ, making a false statement.  The court sentenced him to a forfeiture of all pay and allowances, confinement for 10 years, reduction to the lowest enlisted grade, and a dishonorable discharge.

9.  On 5 February 1990, the convening authority approved a lesser sentence of a dishonorable discharge, confinement for 12 months, forfeiture of all pay and allowances, and a reduction to E-1, 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.

10.  On 30 May 1990, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.



11.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, KS, General Court-Martial Order Number 475, dated 15 August 1990, shows that after completion of all required post-trial and appellate reviews the convening authority ordered the applicant's dishonorable discharge sentence executed. 

12.  The applicant was discharged from the Army on 5 September 1990.  His DD Form 214 shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Enlisted Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 1 year, 5 months, and 22 days (including excess leave) of creditable military service.  He had lost time from 4 December 1989 to 4 September 1990. 

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.

14.  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.  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.

16.  According to the Manual of Courts-Martial, the maximum punishment for: 

* violating Article 120, carnal knowledge with a child who, at the time of the offense, has attained the age of 12 years, is a dishonorable discharge, forfeiture of all pay/allowances, and confinement for 20 years
* violating Article 120, carnal knowledge with a child under the age of 12 years at the time of the offense, is a dishonorable discharge, forfeiture of all pay/allowances, and confinement for life without eligibility for parole
* violating Article 134, is a dishonorable discharge, forfeiture of all pay and allowances, and five years confinement if found guilty

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 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.

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.  His contention regarding the severity of his punishment is rejected.  Except for the pre-trial agreement, the court could have adjudged a more severe and a more harsh punishment.  In any case, the issue of fairness or severity was presumably, or should have been, raised and/or considered during the court-martial proceedings or during the appeal process.  That would have been the appropriate forum to raise such issues.  

4.  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)                                         AR20140004295





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ABCMR Record of Proceedings (cont)                                         AR20140004295



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