IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150001401 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 IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150001401 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. IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150001401 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 (DD) and correction of his military records to show his period of honorable service. 2. The applicant states, although he displayed behavior of misconduct during his service, he did serve honorably during that period. He has made every effort since his release to be a contributing citizen to society. He is responsible for his actions and maintains a positive attitude to fulfill his daily responsibilities whether at home, school, or within his local community. 3. The applicant did not provide any supporting documentation. 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. On 13 July 2001, the applicant enlisted in the Regular Army (RA) with prior honorable active service and for military occupational specialty (MOS) 52D (Power-Generator Equipment Repairer). 3. At a general court-martial that convened on 31 August and 1 September 2003, in Tikrit, Iraq, the applicant was found guilty of: * one specification of signing a false official statement * one specification of negligent homicide * one specification of willful discharge of a firearm under circumstances as to endanger human life * one specification of communicating a threat 4. On 1 September 2003, the applicant was sentenced to confinement for 7 years, reduction to the rank of private/E-1, and a dishonorable discharge. 5. The convening authority approved the sentence, and except for that portion of the sentence extending to a DD was to be executed. The forfeiture of all pay and allowances required by Article 58b, Uniform Code of Military Justice (UCMJ), was waived for a period of 6 months. The applicant was credited with 366 days towards his sentence to confinement. 6. On 19 December 2006, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 7. On 5 September 2007, the United States Court of Appeals for the Armed Forces denied his petition for grant of review of the decision of the U. S. Army Court of Criminal Appeals. 8. General Court-Martial Order Number 81, issued by the U.S. Army Combined Arms Center, U. S. Disciplinary Barracks, Fort Leavenworth, KS, dated 12 October 2007, shows the approved sentence had been affirmed. The forfeiture of all pay and allowanced required by Article 58b, UCMJ, was waived effective 1 October 2004 for a period of 6 months. The provisions of Article 71(c) having been complied with, the sentence was to be duly executed. 9. On 15 July 2009, the applicant was discharged. The DD Form 214 he was issued at the time shows in: a. Item 12a (Date Entered Active Duty This Period), 13 July 2001 b. Item 12b (Separation Date This Period), 15 July 2009 c. 12c (Net Active Service This Period), 1 year, 10 months, and 18 days d. 12d (Total Prior Active Service), 5 years and 2 days REFERENCES: 1. 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. 2. 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: 1. The applicant was convicted by a general court-martial that 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. 2. All appellate reviews were completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. 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 during the period of service that began on 13 July 2001 and absent any mitigating factors, the type of discharge directed and the reasons therefore were 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) AR20150001401 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001401 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2