IN THE CASE OF:	  

		BOARD DATE:	       23 JUNE 2009

		DOCKET NUMBER:  AR20090000118 


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. 

2.  The applicant states that he was young at the time of his discharge and that the things he did were unwise.  He would like an upgrade of his discharge because he has not been in any trouble in the past 31 years.  He adds that he supports his country in all it does and would like to be buried with his family.  He also states that he currently works with kids with domestic problems and/or drug problems.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he was born on 10 November 1943 and was inducted into the Army of the United States at 20 years of age on 4 May 1964.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 81A (Draftsman).  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.

3.  On 16 September 1964, the applicant pled guilty at a Summary Court-Martial at Fort Devens, MA, to two specifications of being absent without leave (AWOL) during the periods on or about 2 August through 7 August 1964 and on or about 13 August through 20 August 1964.  The Court sentenced him to a forfeiture of $52.00 pay for 1 month.  The sentence was adjudged on 16 September 1964 and approved on 21 September 1964.  

4.  On 26 January 1965, the applicant pled guilty at a Special Court-Martial at Fort Leonard Wood, MO, to one specification of being AWOL during the period on or about 3 January through 14 January 1965.  The Court sentenced him to confinement at hard labor for 6 months and a forfeiture of $50.00 pay per month for 6 months.  The sentence was adjudged on 26 January 1965 and approved on 27 January 1965.  

5.  The applicant’s records also show he completed a foreign service tour in Germany from 17 May 1965 to 15 July 1966.  His awards and decorations during this period of service included the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). 

6.  The applicant’s records further show he was honorably released and transferred to the U.S. Army Reserve Control Group (Annual Training) on 28 July 1966.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 1 year, 11 months, and 23 days of creditable active service and he had 92 days of lost time during this period of service.  

7.  After a break in service, the applicant enlisted in the Regular Army for a period of 3 years on 22 June 1970.  He held MOS 71L (Administration Specialist) and completed a second foreign service tour in Germany from on or about 24 November 1970 to 16 December 1973.  While in Germany, he was promoted to specialist five (SP5)/E-5 on 4 November 1971.  

8.  The applicant's records reveal two instances of acceptance of nonjudicuial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 11 January 1972, for breaking restriction on or about 9 January 1972.  His punishment consisted of a reduction to SP4/E-4 and a forfeiture of $193.00 pay for 2 months (1/2 pay per month was suspended for 3 months); and 

	b.  on 12 March 1973, for wrongfully wearing his Class A uniform with several unauthorized medals on or about 22 January 1973 and being derelict in the performance of his duties from on or about 5 October 1972 to 2 March 1973.  His punishment consisted of a forfeiture of $100.00 pay per month for 2 months.

9.  The applicant’s records also show that while in Germany, he was honorably discharged on 6 December 1973 for the purpose of immediate reenlistment.  The DD Form 214 he was issued shows he completed 3 years, 5 months, and 
14 days of creditable active service during this period of service.

10.  The applicant's records also show he executed a 3-year reenlistment in the Regular Army on 7 December 1973.  He was assigned to Aberdeen Proving Ground, MD and further assigned to Korea on or about 16 October 1976.

11.  On 5 January 1978, the applicant pled guilty at a General Court-Martial in Korea to the following specifications that occurred on various dates during April, May, and June 1977 (specifications are grouped by charge): 

	a.  one specification of larceny of official Government forms (Department of Defense (DOD) Identification (I.D.) Card applications and I.D. cards, letters of authorization, and ration cards; 

	b.  one specification of making a false official statement that he was "command-sponsored";

	c.  one specification of willfully and unlawfully altering a public record; one specification of wrongfully and unlawfully receiving monetary compensation from a local national in exchange for DOD forms; one specification of wrongfully and falsely making I.D. cards (altering public records); and one specification of wrongfully giving a local national I.D. cards;

	d.  one specification of falsely altering certain writing and changing certain words on an amendment order;

	e.  one specification of wrongfully transferring a privately owned vehicle before all requirements for Korea customs clearance had been complied with, conspiring with a local national to receive monetary compensation, and one specification of forgery of temporary ration cards; and 

	f.  two specifications of violating a lawful general regulation by forging letters of authorization; two specifications of violating a lawful general regulation by wrongfully selling letters of authorization; one specification of violating a lawful general regulation by counterfeiting a document; one specification of violating a lawful general regulation by wrongfully forging a document used in selling or controlling the sale of merchandise; two specifications of violating a lawful general regulation by wrongfully transferring a ration control plate to a local national; one specification of violating a lawful general regulation by wrongfully transferring a privately owned vehicle before all requirements for Korean custom clearance had been complied with; and one specification of wrongfully disposing of property purchased in Korea free of custom duties.  

12.  The Court sentenced him to confinement for 1 year, a forfeiture of $100.00 pay per month for 1 year, reduction to private (PVT)/E-1, and a dishonorable discharge.  The sentence was adjudged on 5 January 1978. 

13.  On 27 March 1978, the convening authority approved the sentence and except for that part of the sentence extending to the dishonorable discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

14.  On 30 November 1978, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

15.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 34, dated 17 January 1979, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s dishonorable discharge sentence executed.

16.  The applicant was discharged from the Army on 12 March 1979.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a dishonorable discharge.  This form further shows the applicant completed a total of 9 years, 11 months, and 10 days of creditable military service.  He also had 273 days of lost time (from 5 January to 4 October 1978) during this period of service.

17.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  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.

18.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.  .

19.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  Although unrelated to his General Court-Martial and ultimate discharge, the applicant’s prior misconduct, evidenced by two instances of courts-martial, two instances of nonjudicial punishment, and multiple instances of being AWOL, is chronicled throughout the Proceedings as a show of a period of military service marred by indiscipline, misconduct, and total disregard for military discipline and authority.  Contrary to his assertion that he was young at the time, the evidence of record shows that he was 20 years of age at the time of his induction, 21 years of age at the time of his second court-martial, and 34 years of age when he committed his serious misconduct in Korea that led to his General Court-Martial and ultimate discharge.  There is no evidence that his pattern of misconduct was a result of his age. 

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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.

4.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his discharge. 

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)                                         AR20090000118



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ABCMR Record of Proceedings (cont)                                         AR20090000118



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