IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080009308 


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, in effect, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, that he made a mistake when he committed a crime during his military service; however, he served his time and believes the character of his discharge should be upgraded so that he may receive benefits.

3.  The applicant provides copies of a DD Form 214 (Report of Separation from Active Duty), with an effective date of 16 December 1974; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of
7 February 1986; National Archives (NA) Form 13038 (Certification of Military Service), dated 2 February 1987; Gaston County Department of Social Services, Food Stamp Division, Gastonia, North Carolina, Statement of Disability and/or Work Capacity, dated 14 January 2005; and Department of Veterans Affairs (VA), Winston-Salem Regional Office, Winston-Salem, North Carolina, BIRLS Inquiry, dated 29 April 2008.

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 enlisted in the U.S. Army Reserve (USAR) on 19 December 1972 and entered active duty in the Regular Army (RA) for a period of 2 years on 5 January 1973.  Upon completion of basic combat and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The applicant was assigned overseas and served in U.S. Army Europe (USAREUR) in the Federal Republic of Germany (FRG) from 23 May 1973 to 16 December 1974.

3.  The applicant's military service records contain a DD Form 214 (Report of Separation from Active Duty), with an effective date of 16 December 1974.  This document shows that the applicant was honorably released from active duty on 16 December 1974 and transferred to the USAR Control Group (Reinforcement) to complete his remaining military service obligation.  At the time he was credited with completing 1 year, 11 months, and 11 days of net active service this period; 
16 days of prior inactive service; and 1 year, 11 months, and 27 days of total service for pay.  He was also credited with 1 year, 6 months, and 16 days of foreign service.

4.  The applicant’s military service records show he enlisted and reentered active duty in the RA for a period of 6 years on 7 March 1975.  Upon completion of AIT, the applicant was awarded MOS 13F (Fire Support Specialist).  He was assigned overseas and served in USAREUR in the FRG from 10 August 1978 to 6 August 1980.

5.  The applicant’s military service records contain a copy of Headquarters,
3rd Brigade, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, Special Court-Martial Order Number 106, dated 2 September 1975.  This document shows the applicant was charged with violation of Article 86, Uniform Code of Military Justice (UCMJ), Specification 1 in that, on or about 0900 hours, 15 June 1975, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  Battalion Guard Mount located in front of Battalion Headquarters, Fort Campbell, Kentucky; Specification 2 in that, on or about 1000 hours, 15 June 1975, without authority, failing to go at the time prescribed, to wit:  Brigade Guard Mount located in front of Building 6901, Fort Campbell, Kentucky; and Specification 3 in that, on or about 0700 hours, 16 June 1975, without authority, absenting himself from his unit, to wit:  Company C,
3rd Battalion, 187th Infantry, 101st Airborne Division (Air Assault), located at Fort Campbell, Kentucky, and remaining so absent until on or about 1100 hours,
17 June 1975.  The applicant entered a plea of not guilty to the Charge and all specifications.  The judge dismissed specification 2 of the Charge as being multiplicious in specification 1 of the Charge.  The applicant was found guilty of the Charge and the 2 remaining specifications.  On 31 July 1975, the military judge, giving the applicant specific credit for pre-trial confinement served from
3 July 1975 until 31 July 1975, sentenced the applicant to forfeit $75.00 pay per month for 2 months.  (No previous convictions considered.)   On 2 September 1975, the convening authority approved the sentence and ordered the sentence duly executed.

6.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 16 May 1977.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 2400 hours, 7 May 1977, without authority, absenting himself from his unit, to wit:  Company C,
3rd Battalion, 187th Infantry, located at Fort Campbell, Kentucky, and remaining absent until on or about 1227 hours, 8 May 1977; this in violation of Article 86, UCMJ.  The punishment imposed was forfeiture of $126.00.

7.  The applicant's military service records contain a copy of a DA Form 2627, dated 14 November 1977.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 2245 hours, 19 October 1977, at Fort Campbell, Kentucky, while being posted as a guard in Company D,
3rd Battalion, 187th Infantry parking lot, was found sitting in his privately owned vehicle while performing duty; this in violation of Article 113, UCMJ.  The punishment imposed was forfeiture of $124.00, and 7 days extra duty and 7 days restriction to the company area (to run concurrently).

8.  The applicant's military service records contain a copy of a DA Form 2627, dated 15 November 1979.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0730 hours, 9 November 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  Battery Morning Formation, at Building 202, Ledward Barracks, Schweinfurt, Germany, this in violation of Article 86, UCMJ.  The punishment imposed was forfeiture of $100.00 per month for
1 month.


9.  The applicant's military service records contain a DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for
In-Service Personnel), dated 26 January 1981, with 4 endorsements.  This documentation shows that the applicant requested a waiver of his Special Court-Martial conviction for his failure to repair (FTR) on 2 occasions and also waiver of 3 DA Forms 2627 (Article 15s) for being absent without leave (AWOL) on 16 May 1977, dereliction of duty on 14 November 1977, and FTR on 15 November 1979.  
On 5 February 1981, the Chief, Retention Branch, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, approved the applicant’s request for waiver of 28 days lost time.  On 16 March 1981, the Commander, U.S. Army Enlistment Eligibility Activity, St. Louis, Missouri, approved waiver of the applicant’s court-martial record.

10.  The applicant’s military service records show he reenlisted in the RA for a period of 3 years on 31 March 1981.  He was assigned overseas and served in USAREUR in the FRG from 6 February 1982 to 25 March 1984.

11.  The applicant’s military service records contain a copy of Headquarters,
V Corps (Germany), General Court-Martial Order Number 26, dated 13 August 1984.  This document shows the applicant was charged with violation of Article 92, UCMJ, with the specification that, on or about 3 November 1983, he did violate a lawful general regulation by carrying on his person in a concealed manner, a switchblade knife.  He was also charged with violation of Article 128, UCMJ, with the specification that, on or about 3 November 1983, he did commit an assault upon another Soldier, by cutting him with a knife, and did thereby intentionally inflict grievous bodily harm upon said person, to wit:  deep cuts to lower left jaw and left elbow.  Said offenses occurring outside the territorial limits of the United States and not being cognizable in a United States civilian court, the applicant entered a plea of not guilty to all charges and specifications, was found guilty of all charges and specifications, and his sentence was adjudged on 18 April 1984.  The applicant’s sentence was to be reduced to E-1, to be confined at hard labor for 5 years, to forfeit all pay and allowances, and to be discharged from the service with a dishonorable discharge.  (No previous convictions considered.)  On 13 August 1984, the convening authority approved the sentence ordering the forfeitures shall apply to pay and allowances becoming due on and after the date of the approving action.  The convening authority also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and, pending completion of the appellate review, the applicant be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.

12.  The applicant’s military service records contain a copy of Headquarters, United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, memorandum, dated 26 March 1985.  This document shows that, as a result of consideration by the Army Clemency Board, The Secretary of the Army disapproved clemency in the case of the applicant, on
12 March 1985.

13.  The applicant’s military service records contain an opinion from the United States Army Court of Military Review, dated 24 June 1985.  This document shows that the issues personally raised by the applicant and the issues briefed by his counsel were considered and found to be without merit.  This document also shows that the Court having found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence were affirmed.

14.  The applicant’s military service records contain a copy of Headquarters, United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 400, dated 27 November 1985, which states, in pertinent part, the applicant's sentence was affirmed pursuant to Article 66.  This document also states that the provisions of Article 71(c) having been complied with, the sentence was ordered to be duly executed and the applicant confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and the confinement served therein, or elsewhere as competent authority may direct.

15.  The applicant’s military service records contain a copy of Headquarters, Department of the Army, Washington, District of Columbia, General Court-Martial Order Number 16, dated 21 March 1986, which shows, in pertinent part, that the Assistant Secretary of the Army (Manpower and Reserve Affairs) having considered the petition of the applicant for clemency, took the following action:  “the approved sentence having been finally affirmed and ordered into execution, pursuant to Article 74a, UCMJ, so much of the unexecuted portion of the sentence as pertains to confinement which is in excess of 47 months is remitted.”

16.  The applicant's military service records contain a DD Form 214 that shows the applicant entered active duty this period on 31 March 1981 and was discharged on 7 February 1986.  This document also shows the authority for the applicant’s separation was Army Regulation 635-200, paragraph 3-10, as a result of court-martial, other, and that his character of service was categorized as “dishonorable.”  This document further shows the applicant had time lost during this period from 18 April 1984 through 7 February 1986 and that he was retained 
in service 679 days for the convenience of the Government per Army Regulation 635-200.  At the time of his discharge, the applicant was credited with 3 years and 17 days of net active service this period; 7 years, 11 months, and 6 days of total prior active service; 3 months and 7 days of total prior inactive service; and 2 years, 2 months, and 12 days of foreign Service.

17.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

18.  In support of his application, the applicant provides the following documents.

     a.  DD Forms 214 with an effective date of 16 December 1974 and 7 February 1986.  These 2 documents were previously introduced and considered in this Record of Proceedings.

     b.  NA Form 13038 (Certification of Military Service), dated 2 February 1987, that documents the applicant’s honorable service in the RA from 7 March 1975 through 30 March 1981.

     c.  Gaston County Department of Social Services, Food Stamp Division, Gastonia, North Carolina, Statement of Disability and/or Work Capacity, dated
14 January 2005, that shows the attending physician indicated the applicant’s “Work capacity” as “None” and in response to “Should work be restricted as to Type:” he entered “Full disability.”

     d.  Department of VA, Winston-Salem Regional Office, Winston-Salem, North Carolina, BIRLS Inquiry, dated 29 April 2008, that, in pertinent part, shows the applicant’s periods of military service, along with the characterization of service.

19.  Title 10 of United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3 (Character of Service/Description of Separation), paragraph 3-10 (DD Form 260A -Dishonorable Discharge Certificate) states that a member 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his dishonorable discharge should be upgraded because he served his time for the crime he committed and he is in need of government benefits based on his military service.

2.  The evidence of record shows that the applicant initially served on active duty in the RA from 5 January 1973 through 16 December 1974 and that this period of honorable active duty service is documented in his military service records in the form of a DD Form 214, with an effective date of 16 December 1974.

3.  The evidence of record also shows that the applicant served on active duty in the RA from 7 March 1975 through 30 March 1981 and that this period of honorable active duty service is documented in his military service records in the form of an NA Form 13038 (Certification of Military Service), dated 2 February 1987.

4.  With respect to the applicant’s period of active duty in the RA from 31 March 1981 through 7 February 1986, the period of service that is currently under review, the evidence of record confirms the applicant’s trial by general court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

6.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

7.  The ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government benefits.

8.  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.  



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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.



      __________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.

ABCMR Record of Proceedings (cont)                                         AR20080009308



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ABCMR Record of Proceedings (cont)                                         AR20080009308



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