IN THE CASE OF:
BOARD DATE: 19 March 2015
DOCKET NUMBER: AR20140013494
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 that the effective date of his dishonorable discharge be changed from 13 December to 20 December 1993.
2. The applicant states, in effect, that he desires to have the effective date of his dishonorable discharge changed from 13 December to 20 December 1993 so that he can qualify for non-regular retirement. He goes on to state that he applied for non-regular retirement and it was approved; however, shortly afterward the retirement was revoked because he was 7 days short of completing 20 years of service.
3. The applicant provides copies of his Chronological Statement of Retirement Points, retirement orders, revocation of his retirement orders, and a letter from the U.S. Army Human Resources Command (HRC).
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a United States Army Reserve (USAR) chief warrant officer two (CW2) in the Active Guard Reserve (AGR) Program when he was convicted by a General Court-Martial on 30 April 1991 of four specifications of false swearing on 2 November 1990. He was sentenced to be discharged from the service with a dishonorable discharge.
2. On 16 April 1993, the United States Army Court of Military Review affirmed the findings as approved by the convening authority. On 17 August 1993, the United States Court of Military Appeals denied the applicants petition for a grant of review. Secretarial action pursuant to Article 71(b), Uniform Code of Military Justice directed that the sentence be affirmed.
3. On 12 October 1993, the Chief of Staff of the Army, acting on orders by the acting Secretary of the Army decreed that effective midnight 13 December 1993, the applicant ceased to be an officer of the United States Army.
4. On 14 December 2009, the applicant was provided a Chronological Statement of Retirement Points by the U.S. Army Reserve Personnel Command in St. Louis, Missouri showing that he had 19 years, 11 months and 23 days of creditable service. He was also provided an information paper explaining to him that he was not entitled to retired pay.
5. On 16 June 2014, orders were published by the U.S. Army Human Resources Command (HRC) placing the applicant on the AUS Retired List effective 25 June 2014. On 16 July 2014, those orders were revoked by the HRC and a letter was dispatched to the applicant informing him that he was ineligible to receive retired pay as he had not completed 20 qualifying years of service.
6. 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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
2. The applicants contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses. Additionally, the Board does not grant relief simply to qualify individuals for benefits that they otherwise are not qualified to receive.
3. At the time the applicant was dismissed from the service with a Dishonorable Discharge on 13 December 1993, he had only served 19 years, 11 months and 23 days of creditable service and was not eligible for retirement.
4. Therefore, since there is no error or injustice in his case and no basis for clemency given his offenses, there appears to be no basis for granting his 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) AR20140013494
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