BOARD DATE:	  28 September 2015

		DOCKET NUMBER:  AR20150002446 


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 he received two honorable discharges which should rate an upgrade of his dishonorable discharge.  It has been over 10 years and he wants to be respected.  He claims he told the truth and is innocent.  He states he is not gay, but was taken advantage of while drunk and asleep.

3.  The applicant provides no additional evidence. 

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 4 August 1986.  He completed training and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  Special Court-Martial Order Number 34, issued by Headquarters, 3rd Infantry Division, dated 12 November 1987, shows that he was found guilty on or about 
6 July 1987, of willfully and wrongfully damaging a 1984 Nissan Stanza automobile by spraying it with paint and slashing four automobile tires, the amount of said damages being in excess of $100.00, the property of Captain P______ M. R_______.

4.  The sentence was adjudged on 6 October 1987:  to be discharged from the Army with a bad conduct discharge, to be confined for 100 days, to forfeit $388.00 pay for 3 months, and to be reduced to the rank/grade of private/E-1.  The sentence was approved and, except for the bad conduct discharge, was to be executed.

5.  Special Court-Martial Order Number 212, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 24 December 1987, stated the unexecuted portion of the sentence to confinement as promulgated in Special Court-Martial Order Number 34, dated 12 November 1987, was remitted.  Further, the unexecuted portion of the sentence pertaining to discharge from the service with a bad conduct discharge was suspended for six months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

6.  On 22 February 1988, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.  It appears the unexecuted portion of the sentence was remitted and he continued to serve.

7.  On 17 August 1992, the applicant was assigned to the 702nd Main Support Battalion, 2nd Infantry Division, Republic of Korea.  His record contains General Court-Martial Order Number 14, issued by Headquarters, 2nd Infantry Division, dated 11 December 1993, which shows he was arraigned at Camp Casey, Republic of Korea, and found guilty of:

   a.  Assault on a noncommissioned officer, then in the execution of his duties, between on or about 15 January and 15 February 1993;

   b.  Committing sodomy with a male Soldier on or about 15 January and       15 February 1993;
   c.  Committing an indecent assault upon a Soldier not his wife, with intent to gratify his sexual desires, between on or about 15 January and 15 February 1993;

   d.  Disorderly conduct, between on or about 15 January and 15 February 1993;

   e.  Willfully disobeying a lawful order of a noncommissioned officer, on or about 4 July 1993;

   f.  Assault of a superior noncommissioned officer, in the execution of his office, on or about 4 July 1993;
   
   g.  Disrespectful language toward a superior noncommissioned officer, in the execution of his office, on or about 4 July 1993; and

   h.  Drunk and disorderly conduct, on or about 4 July 1993.

8.  His sentence was adjudged on 11 September 1993:  to be reduced to the rank of private/E-1, to forfeit all pay and allowances, confinement for one year, and a dishonorable discharged.  The sentence was approved except for the part of the sentence extending to a dishonorable discharge.

9.  His record contains Special Court-Martial Order Number 22, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, dated 1 December 1994, which shows he was found guilty of assault, consummated by a battery on or about 28 May 1994.  The specification was amended subsequent to arraignment and prior to pleas by the military judge upon motion of the government to reflect the date of the offense as 26 May 1994.  The sentence was adjudged on              4 August 1994 and he was to be confined for 6 months and to be discharged from service with a bad conduct discharge.  

10.  Having considered all matters raised in the post-trial clemency petition with two enclosures, the sentence was approved and except for the part of the sentence extending to a bad conduct discharge, was executed.  The applicant was credited with 56 days against confinement.

11.  Special Court-Martial Order Number 5, issued by Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, dated 8 March 1995, affirmed the findings of Special Court-Martial Order Number 22.  Execution of the bad conduct discharge was withheld pending completion of the proceedings promulgated in General Court-Martial Order Number 14.

12.  General Court-Martial Order Number 14, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 13 March 1996, states the sentence to reduction to private/E-1, forfeiture of all pay and allowances, confinement for one year, and a dishonorable discharge, adjudged on               11 September 1993, as promulgated in General Court-Martial Order Number 14, dated 11 December 1993, had finally been affirmed.  Article 71(c) having been complied with, the dishonorable discharge was to be executed.  That portion of the sentence pertaining to confinement had been served.

13.  The applicant was dishonorably discharged on 12 June 1996, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial, other.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed
8 years, 6 months, and 17 days of net active service this period with lost time for the periods 6 October to 23 December 1987 and 17 September 1993 to            20 October 1994.

14.  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.

15.  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 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.

   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 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.

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 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 reasons 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)                                         AR20150002446





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ABCMR Record of Proceedings (cont)                                         AR20150002446



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