BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000540 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000540 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20160000540 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 to general under honorable conditions. 2. The applicant states he is asking for an upgrade because his discharge was based solely on one incident. 3. The applicant provides a DA Form 638-1 (Recommendation for Award of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal), dated 1991, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 November 1994. 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 30 August 1989. He held military occupational specialty 13B (Cannon Crewmember). Following initial training, he was assigned to Fort Hood, TX, arriving on or about 18 January 1990. 3. While at Fort Hood, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two occasions between August and October 1990 as follows: * 18 August 1990 for failing to appear at this appointed place of duty at the time prescribed (also referred to as failure to repair (FTR)) * 1 October 1990 for FTR 4. He deployed to Saudi Arabia from on or about 4 October 1990 to on or about 20 April 1991. 5. He accepted NJP on two more occasions in or around May 1991 as follows: * 22 May 1991 for FTR * (date of acceptance is illegible) for FTR on 28 May 1991 6. His available service record contains an Army Achievement Medal Award Certificate, dated 23 December 1991, for outstanding job performance during three battalion field-training exercises and the battalion's standardized external evaluation. 7. On 30 March 1993, the applicant again accepted NJP for FTR. Punishment included a suspended reduction in rank from specialist to private first class; the suspension was later vacated, but the date is not readable. 8. On 28 April 1993, his Fort Hood commander initiated bar to reenlistment action against him. He cited his history of NJP and the fact he was under investigation for attempted rape, attempted sodomy, and indecent assault. The battalion commander approved the bar to reenlistment on 28 April 1993. 9. While still assigned to Fort Hood, he was tried by a general court-martial. General Court-Martial Order Number 60, dated 22 December 1993, issued by Headquarters, 1st Cavalry Division, shows: a. One specification of attempted rape: pled not guilty, found not guilty; one specification of attempted sodomy: pled not guilty, found not guilty; one specification of indecent acts with another: pled not guilty, found guilty. b. The sentence was adjudged on 26 August 1993 and consisted of a dishonorable discharge, forfeiture of all pay and allowances, confinement for 40 months, and reduction to private/E-1. c. The sentence was approved by the convening authority on 22 December 1993 and, except for the dishonorable discharge, the sentence was ordered duly executed. 10. On 19 May 1994, the U.S. Army Court of Military Review determined the previously approved findings of guilt and the sentence were correct in law and fact. The court affirmed the findings and sentence. 11. On 19 August 1994, the U.S. Court of Military Appeals considered the applicant's petition for a review of the decision made by the U.S. Army Court of Military Review. The court denied his appeal. 12. General Court-Martial Order Number 299, dated 27 October 1994, issued by U.S. Disciplinary Barracks, showed the sentence, as promulgated in General Court-Martial Order Number 60, dated 22 December 1993, was affirmed. As Article 71(c) had been complied with, the dishonorable discharge was ordered duly executed. 13. The applicant was discharged on 25 November 1994. His DD Form 214 shows he was separated with a dishonorable discharge in accordance with paragraph 3-10 (Dishonorable Discharge) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He completed 3 years, 11 months, and 26 days of net active creditable service with lost time from 26 August to 29 August 1993. He was awarded or authorized: * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars * Kuwait Liberation Medal-Saudi Arabia * Army Service Ribbon REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record so that it reflects actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. AR 635-200 prescribes the policy and procedures for enlisted separations. a. 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. b. A dishonorable discharge is issued pursuant only to an approved sentence of a general court-martial. An appellate review must be completed, and the affirmed sentence ordered duly executed. DISCUSSION: 1. The evidence of record confirms he was convicted by a general court-martial on 26 August 1993. a. The applicant argues his dishonorable discharge was unjust in that his discharge was based solely on one incident. However, he had five prior NJPs and a bar to reenlistment. He was then charged with committing multiple serious offenses that were punishable under the UCMJ and convicted on one charge and specification. A punitive discharge was an available punishment for the offense for which he was convicted. The type of court-martial convened to adjudicate the charges was appropriate given the gravity of his misconduct. b. The appellate review was completed and the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. c. Based on the foregoing information, it appears all requirements of law and regulation were met and his rights were fully protected. 2. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board 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. The review for clemency is focused on the period of active service and whether an error or injustice occurred with regard to his court-martial. The Board is empowered to upgrade the applicant's character of service if it finds compelling evidence indicating clemency is appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000540 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000540 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2