IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20080015460 


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 that his dishonorable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that he served honorably throughout his tours of duty in the United States and in Germany from November 1976 until September 1979.  He states that he achieved the pay grade of E-4 and that he followed orders as he was told.  He states that he served his country to the best of his ability and he respectfully requests an upgrade of his discharge.

3.  The applicant provides no additional documentation in support of his application.

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 23 November 1976, the applicant enlisted in the Regular Army (RA) in Harrisburg, Pennsylvania, for 3 years, in the pay grade of E-1.  He successfully completed his training as a motor transport operator.

3.  The applicant was promoted to the pay grade of E-2 on 24 May 1977 and he was promoted to the pay grade of E-3 on 23 November 1977.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 24 March 1978 for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended for 90 days) and extra duty.

5.  On 8 May 1978, the applicant was transferred to Germany and he was promoted to the pay grade of E-4 on 1 November 1978.

6.  On 3 November 1978, NJP was imposed against the applicant for being drunk and disorderly in an off limits area.  His punishment consisted of a forfeiture of pay and extra duty.

7.  On 12 February 1980, the applicant was convicted, pursuant to his pleas, by a general court-martial of stealing from another person by means of force a wallet containing approximately 190 Deutsch Marks ($107.00); assaulting two civil law enforcement officers by striking at them with his hands and feet; committing an assault upon an individual by striking his face and body with his fists, bashing his head against the floor, twisting his arms, bending his thumbs and placing a knife to his throat with means likely to produce grievous bodily harm; committing an assault upon three Soldiers by driving at them with a 5 ton truck; wrongfully soliciting another Soldier to forge the signatures of two commissioned officers; and wrongfully inducing another Soldier to forge the signatures of two commissioned officers.  He was sentenced to a dishonorable discharge, confinement at hard labor for 3 years and 1 month, a forfeiture of all pay and allowances and a reduction to the pay grade of E-1.

8.  On 28 June 1980, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  The convening authority approved the sentence as adjudged.  On 17 November 1980, General Court-Martial Order Number 777, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, noting that the findings and sentence as approved by the convening authority had been affirmed, ordered the dishonorable discharge to be executed.
9.  Accordingly, on 15 December 1980, the applicant was dishonorably discharged under the provisions of Army Regulation 635-200, chapter 11-1 as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 2 years, 11 months and 15 days of net active service.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation states, in pertinent part, that a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

12.  Paragraph 3-7b of Army Regulation 635-200 (Enlisted Personnel) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his dishonorable discharge should be upgraded to a general discharge.

2.  His contentions have been considered.  However, his records do not show that he served under honorable conditions.  

3.  The applicant's records show that he had NJP imposed against him twice and he was convicted by a general court-martial as a result of his acts of misconduct and indiscipline while he was in Germany.  His records also show that he stole money; committed assault upon other Soldiers; and solicited and induced another Soldier to commit forgery.  Considering the nature of his offenses the type of discharge that he received appropriately reflects his overall record of service.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      _______ _XXX   _______   ___
               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)                                         AR20080015460



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015460



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1