RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 April 2008
	DOCKET NUMBER:  AR20070015000 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Jeffrey C. Redmann

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 (DD) be upgraded to a general or an honorable discharge.

2.  The applicant states he would like to have his DD upgraded because he was charged with forgery for writing his own checks, not someone else's checks.  He pled guilty because his lawyer told him it was in his best interest, but not having any knowledge of the law at all he took the deal without knowing he would lose all of his benefits.  He is aware it has been over 20 years since he received his discharge, but he found out that a lot of DDs were upgraded that were more serious than his.  He would like to have his discharge upgraded so that he can receive all of his benefits like other veterans.

3.  The applicant provides a personal statement.

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's military service records show he entered active duty on  
3 March 1980.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 63W (Wheel Vehicle Repairer).

3.  Between 8 October 1980 and 24 June 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for recklessly and wrongfully damaging another Soldier's stereo components by urinating on them (a value of $887.00); twice disobeying a lawful order; twice going from his appointed place of duty; participating in a breach of peace by wrongfully engaging in a fist fight; and assaulting a Soldier by pushing him against a wall.

4.  On 24 September 1981, pursuant to his guilty pleas, the applicant was convicted by a general court-martial for one specification of attempted robbery and 13 specifications of uttering worthless checks.  He originated the offer to plead guilty and stated that no person or persons had made any attempt to force or coerce him into making the offer or to plead guilty, on 22 September 1981.  The court-martial sentenced the applicant to a DD, confinement for 38 months, and forfeiture of all pay and allowances.  In accordance with the pretrial agreement and the applicant's resulting pleas of guilty the convening authority approved only 20 months of confinement and the remainder of the sentence as adjudged, pending completion of appellate review.

5.  On 25 March 1982, the United States Army Court of Military Review (ACMR) affirmed the court-martial’s findings of guilty and the sentence.

6.  On 13 August 1982, the applicant's DD was ordered to be executed.  

7.  On 16 September 1982, the applicant was discharged as a result of a court-martial.  He had completed 1 year, 6 months, and 21 days of active service and accrued 358 days of time lost.

8.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial; and requires that the appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Army Regulation 635-200, 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 (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.

10.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (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 AND CONCLUSIONS:

1.  The applicant contends that his DD should be upgraded to a general or an honorable discharge.

2.  The applicant’s contentions that his lawyer told him it was in his best interest to plead guilty and that he took the deal without knowing he would lose all of his benefits, is without merit.  The evidence shows that the applicant entered into an offer to plead guilty and that no one had attempted to force or coerce him to take the deal.  He received the benefit of the deal when the convening authority reduced his confinement time by 18 months.

3.  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.  Therefore, he is not entitled to correction of his records to show a general discharge or an honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD __  __LMD__  __JCR___   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.




___Carmen Duncan  ___
      CHAIRPERSON