IN THE CASE OF:	   

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140008350 


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 (DD) to an honorable discharge (HD).

2.  The applicant states that he had an exceptional career up until the point of the incident and he contends that his punishment was too harsh.  He made a mistake as a young Soldier and feels that he has served his time.  Further, he would like to serve his country again.

3.  He contends that during his tenure as a Soldier he was always above standard.  Since his exit from the military he has continued to try to better himself.  He has had numerous jobs where he continued to serve and assist Soldiers and their family members.  He served as the Chief of Personnel Movement on Fort Benning, GA for 5 years and he served with the War Fighter in Iraq as a contractor for 16 months.  He is currently working in Afghanistan since 2011.  He also received an Associate Degree in Theology and became a Licensed Minister.  An upgrade of his discharge would allow him to apply for service connected disability.

4.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 4 May 2014.

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 8 June 1983.  He served on active duty as a radio operator and a personnel administrative specialist.

3.  General Court-Martial Order Number 21, issued by Headquarters, United State Army Infantry Center and Fort Benning, GA, dated 28 August 1996, shows that he was found guilty of the following specifications:

* larceny (three specifications)
* making a false claim
* presenting a false claim
* using a false writing in connection with a claim 
* communicating a threat

4.  He was sentenced to be reduced to the grade of private (PV1)/E-1, total forfeiture of all pay and allowances, to be confined for 1 year (subsequently reduced to 6 months), and to be discharged from the service with a DD.  His sentence was approved and, except for the discharge, was ordered executed by the convening authority on 28 August 1996.

5.  On 9 September 1996, he requested that the commanding general reinstate him on active duty upon his release from confinement.  He contended that he was misrepresented by his lawyers and that four of the six jurors were members of the same unit that prosecuted him.  He further noted several injustices committed by his counsel which included:

* being denied his sixth amendment right to effective assistance
* failure to properly exercise peremptory challenges
* failure to adequately cross-examine witnesses
* failure to adequately represent at sentencing
* failure to prepare for case
* failure to investigate or question all witnesses
* not calling all witnesses or evidence to trial
* not making all witnesses known at Article 32 hearing
* present vital witnesses
* [address] issues of command influence
* failure to conduct pre-trial discovery
* failure to get charges dismissed that were not founded
* not prepared for extenuation and mitigation case
* torn between loyalties as officer and loyalties as defense counsel
* failure to get witnesses disqualified as being “credible” [sic]
* never sat down as a defense team to go over line of questions to prepare client for trial
* failure to keep in touch with client on disposition of case
* failure to notify client that convening authority had changed

6.  The approval authority considered the applicant's overall service record, the offenses of which he was convicted by court-martial, the result of trial, and the recommendations by the Staff Jude Advocate, and determined that the applicant's continued presence on active duty pending appellate review was not productive or beneficial to the U.S. Army.  The applicant was directed to take involuntary excess leave effective immediately upon his release from confinement.

7.  On 10 June 1998, the U.S. Army Court of Criminal Appeals amended the separate charges of "making" and "presenting" a false claim to show he was guilty of one specification of "making and presenting" a false claim.  The remaining findings of guilty and his sentence were affirmed.

8.  On 29 September 1999, the U.S. Army Court of Criminal Appeals opined upon remand that the evidence established the applicant's guilt to all offenses for which he was convicted beyond a reasonable doubt.  There was no requirement to return the matter to the court.

9.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 219, dated 29 August 2000, confirmed that in the general court-martial case of the applicant, findings and sentence were finally affirmed.  The provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered executed.

10.  He was dishonorably discharged on 12 December 2000 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial conviction.  His DD Form 214 shows he completed 17 years, 1 month, and 16 days of net active service this period.

11.  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.

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

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

   b.  Paragraph 3-7a provides that an HD 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.

   c.  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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered; however, the available evidence shows that his trial by court-martial was warranted by the gravity of the offenses for which he was charged.

2.  He was convicted by a general court-martial and he was discharged as a result of his court-martial conviction.  He has not provided any evidence to show the character of service he received was in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

3.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if 
clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge he received and the reason therefore appear to be appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140008350





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ABCMR Record of Proceedings (cont)                                         AR20140008350



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