RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060008555 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Acting Director



Analyst

The following members, a quorum, were present:



Chairperson


Member


Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his dishonorable discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that his dishonorable discharge was supposed to be changed to an honorable discharge after 7 years. 

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 July 1986, the date of his dishonorable discharge from the Regular Army.  The application submitted in this case is dated 7 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 6 October 1981.  After completing basic and advanced individual training, he served an overseas tour in Germany.  He was then reassigned to Fort Carson, Colorado, and served with the 2nd Battalion, 34th Armor Regiment.

4.  On 8 April 1985, the applicant’s commander barred him from reenlistment citing two Articles 15 because the applicant absented himself from his place of duty and other misconduct.  On 1 May 1985, the accepted an Article 15 for absenting himself from his place of duty.  On 31 May 1985, the applicant accepted yet another Article 15 for breaking restriction and absenting himself from his place of duty on three occasions.  

5.  He was apprehended at 0100 hours on 26 June 1985, and placed in the custody of his unit’s Staff Duty Officer and Staff Duty Noncommissioned Officer, and was placed in confinement at 0505 hours on 26 June 1985.   However, the applicant escaped through a window after a short time, and was placed in an AWOL status again.  On that same day, he was apprehended by the Colorado Springs Police Department at 2200 hours and charged with shoplifting.  On 
28 June 1985, civil authorities turned the applicant over to military authorities, and he was placed in military confinement at that time.

6.  On 20 August 1985, the applicant pled guilty before a military judge sitting alone at a general court-martial to the following offenses:

a.  unauthorized absence from his unit from 24 June 1985 to 26 June 1985;

b.  unauthorized absence from his unit again on 26 June 1985;

c.  larceny of a Hawk Function Engine Analyzer, of some value, property of the Army and Air Force Exchange Service on 13 March 1985;

d.  larceny of a wallet containing various forms of identification, of some value and United States currency, of a value of $130.00, private property of another Soldier on 1 April 1985;

e.  wrongful appropriation of a firearm, of some value, private property of another Soldier on 8 April 1985; and

f.  wrongfully and unlawfully making a false statement on 10 April 1985.

7.  The applicant’s punishment from his general court-martial consisted of a reduction in rank to private/pay grade E-1, a forfeiture of all pay and allowances, a dishonorable discharge, and confinement for 18 months.  On 8 October 1985, his sentence was approved,  but the execution of that part of the sentence adjudging confinement in excess of 1 year was suspended for 17 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was to be remitted without further action.  The applicant was also credited with 53 days of pre-trial confinement against the sentence to confinement.

8.  On 12 February 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  On 16 May 1986, the United States Court of Military Appeals denied the applicant’s petition for review.

9.  On 2 July 1986, the applicant was discharged from the Regular Army pursuant to a duly reviewed and affirmed court-martial order and was issued a Dishonorable Discharge Certificate.  His DD Form 214 shows the reason and authority for his discharge was Army Regulation 635-200 (Enlisted Personnel), Chapter 3, Section IV (Dishonorable and Bad Conduct Discharge).  
10.  In his application, the applicant essentially stated that his dishonorable discharged was supposed to be upgrade to an honorable discharge after 7 years. However, there is no regulation or provision of law that requires that a dishonorable discharge could or should be upgraded to an honorable discharge after 7 years.

11.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

12.  Army Regulation 635-200 provides, in pertinent part, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200 also provides, in pertinent part, 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to an honorable discharge.

2.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



3.  The applicant’s trial by general court-martial was warranted by the gravity of the serious offenses with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The applicant's entire record of service was considered using the available documents.  The fact that the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice four times, and had a bar to reenlistment imposed upon him in addition to his general court-martial, which resulted in a dishonorable discharge, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s dishonorable discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 July 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
1 July 1989.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___SF  __  __RV ___  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____James Anderholm______
          CHAIRPERSON




INDEX

CASE ID
AR20060008555
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
19860702
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 3
DISCHARGE REASON
CONVICTION BY COURT-MARTIAL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.9225.0000
2.

3.

4.

5.

6.