BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160002019 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: 16 May 2017 DOCKET NUMBER: AR20160002019 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: 16 May 2017 DOCKET NUMBER: AR20160002019 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 and removal of his felony conviction from his records. 2. The applicant states it was his first offense. He was a great Soldier until that day. He never had any unfavorable reports, he made rank quickly, and he was always the leader of his section. 3. The applicant provides: * self-authored letter, dated 5 November 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 March 1986 for a period of 3 years. On 24 September 1989, he was honorably discharged for immediate reenlistment. 3. He reenlisted on 25 September 1989 for a period of 4 years. He was promoted to sergeant effective 1 December 1989. 4. He served in Southwest Asia in support of Operations Desert Shield/Desert Storm from 26 September 1990 to 31 March 1991. 5. On 16 April 1992, he was convicted by a general court-martial of six specifications of larceny. He was sentenced to confinement for 4 years, forfeiture of $500.00 pay per month for 48 months, reduction to E-1, and a dishonorable discharge. On 26 May 1992, the convening authority approved the sentence, but suspended confinement in excess of 25 months for 12 months. 6. The U.S. Army Court of Military Review decision is not available for review. However, Headquarters, Fort Hood, General Court-Martial Order Number 28, dated 26 May 1993, shows the applicant's sentence had been finally affirmed and, Article 71(c) having been complied with, the dishonorable discharge was ordered duly executed. 7. He was issued a dishonorable discharge on 7 May 1993 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial conviction. He completed 6 years and 18 days of creditable active service with 382 days of lost time. 8. He provided a self-authored letter, dated 5 November 2015, wherein he stated: a. He enlisted in the Army in 1986 and served for a little over 6 years. He was separated from the Army with a dishonorable discharge and a felony conviction. b. No words can explain how sorry he is for what he did. He committed an unthoughtful act and he was sentenced to 3 years and 1 day in confinement. He had a pretrial agreement for 1 year of confinement if he paid restitution, which he did. He served in confinement for 1 year and was on parole for another year. He learned his lesson and he has never been in any trouble to this day. c. It is important to him to have his discharge upgraded and the felony conviction removed from his records. He has raised five boys. One son is a videographer, one son is self-employed, one son is a Marine, one son is in the Army, and his youngest son is 9 years old. He is worried and concerned he will not be able to visit his sons on base for their ceremonies, deployments, family visits, or if they need him. He has explained his story to his four oldest boys and will again to his youngest son one day. He wants his children to learn from him that you will pay for the immature decisions you make and how one bad decision can change not only your own life, but someone else's life as well. d. When he was in the military, he worked extremely hard to prove himself as an outstanding Soldier, he was always the leader in his section, he made rank quickly, he received awards for doing outstanding jobs, and he never had an unfavorable report. He was what one would call a "Squared Away Soldier" until he found a wallet on the ground and made a stupid decision. e. He lost everything – his career, family, and respect from his peers. He fought for this country and cannot tell people what a great life he had in the Army. He does not want people to look down on him. He served his time and became a better man. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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. 2. 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 Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice 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. DISCUSSION: 1. The applicant's contentions were carefully considered. However, his trial by court-martial was warranted by the gravity of the offenses charged. His record of service during his last enlistment included one general court-martial conviction for six specifications of larceny while serving in the rank of sergeant and 382 days of lost time. 2. His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which he was convicted. 3. His request to remove his felony conviction from his records was noted. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002019 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002019 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2