IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140014865 


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.

2.  The applicant states since his discharge he has not been in any trouble.  He has been gainfully employed and active in his church. 

3.  The applicant provides: 

* Municipal Court – Report of Violations by Name
* Multiple character reference letters

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 28 December 1981 and he held military occupational specialty 13B (Cannon Crewmember).  He served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank of staff sergeant (SSG)/E-6. 

3.  He served in Germany from April 1982 to March 1984, from March 1986 to February 1988, and from December 1991 to May 1994.  He also served in Southwest Asia from August 1990 to March 1991. 

4.  He was awarded or authorized the Army Good Conduct Medal (3rd Award), National Defense Service Medal, Army Commendation Medal (5th Award), Army Achievement Medal (3rd Award), Southwest Asia Service Medal with two bronze service stars, NCO Professional Development Ribbon with Numeral 3, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Kuwait Liberation Medal, and Driver Badge with Track Vehicle Bar. 

5.  On 11 May 1994, he was convicted by a general court-martial of: 

* one specification of rape
* one specification of sodomy by force without consent
* one specification of kidnapping
* one specification of conspiracy to commit rape
* one specification of adultery

6.  The court sentenced him to a reprimand, forfeiture of all pay and allowances, reduction to the lowest enlisted grade of E-1, confinement for 12 years, and a dishonorable discharge.  

7.  On 28 July 1994, 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 4 January 1996, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 144, dated 31 December 1996, 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 7 February 1997.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 12 years, 4 months, and 6 days (including excess leave) of creditable military service.  He had lost time from 22 to 28 January 1994 and from 11 May 1994 to 7 February 1997. 

11.  He provides: 

	a.  Municipal Court – Report of Violation by Name, dated 4 August 2014, that shows he had a simple speeding violation. 

	b.  Multiple character reference letters from a police officer, acquaintances, and friends who describe him as a man of integrity and honesty.  He is also described as a law-abiding citizen who is involved in the community and church.  He has been gainfully employed and he is a man of his word. 

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.

	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.  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 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.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to clemency in the form of an upgrade of his dishonorable 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)                                         AR20140014865



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ABCMR Record of Proceedings (cont)                                         AR20140014865



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