IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140021741 


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, in effect, clemency and an upgrade of his dishonorable discharge to an honorable discharge.

2.  The applicant states he was falsely accused of a crime.  He didn't have a jury of his peers and he was unfairly charged.  Also, the witness who could have spoken on his behalf was not permitted to do so.  There was no evidence against him.  

3.  The applicant provides General Court-Martial Order Number 124, dated 28 July 1999 and Order 058-02, dated 10 August 1999.

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 18 January 1996.

3.  On 28 January 1998, he was convicted by a general court-martial of raping a female Soldier and for wrongfully communicating a threat to another Soldier.  He was sentenced to a reduction to the grade of private/E-1, a forfeiture of all pay and allowances, confinement for 10 years, and to be dishonorably discharged from the service.  His service record is void of any indication that he was denied an opportunity to have a witness speak on his behalf.  

4.  On 14 April 1998, the sentence was approved and, except for that part of the sentence extending to a dishonorable discharge, was to be executed.

5.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

6.  General Court-Martial Order Number 124, dated 28 July 1999, shows the dishonorable discharge was ordered to be executed.

7.  He was discharged on 27 August 1999 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, paragraph 3-10, by reason of court-martial, other with issuance of a dishonorable discharge.  He completed 2 years and 10 days of creditable active service with approximately 586 days of lost time.

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

   a.  Paragraph 3-10 of this regulation states 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	b.  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.

   c.  Paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

9.  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.  The applicant contends he was falsely accused of the crime that was brought against him.  However, his service record is void of evidence and he has not provided any evidence to support his claim.  

2.  The applicant's service record shows he was convicted by a general court-martial of raping a female Soldier and for wrongfully communicating a threat to another Soldier, which are serious offenses.

3.  The applicant's contentions that he didn't have a jury of his peers, was unfairly charged, and a witness was not permitted to testify on his behalf were considered.  However, his trial by court-martial was warranted by the gravity of the offenses charged, his conviction and discharge were affected in accordance with applicable laws and regulations, and his discharge appropriately characterizes the misconduct for which he was convicted.  In the absence of evidence to the contrary, administrative regularity is presumed.  

4.  Based on the seriousness of his offenses, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for a general or an honorable discharge.

5.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for 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)                                         AR20140021741



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ABCMR Record of Proceedings (cont)                                         AR20140021741



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