IN THE CASE OF:	  

		BOARD DATE: 	        5 May 2009


		DOCKET NUMBER:  AR20090000952 


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.

2.  The applicant states, in effect, that he knows he made a mistake and did wrong, but he does not deserve a dishonorable discharge.  He contends that he was a young man that had never had a drink and when he made this mistake he was drunk.

3.  The applicant provides no documentary evidence 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.  The applicant was born on 30 January 1959.  He enlisted in the Regular Army on 6 April 1977 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 76D (materiel supply specialist).

3.  On 6 January 1978, nonjudicial punishment was imposed against the applicant for participating in a breach of peace.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, restriction, and extra duty.

4.  On 16 February 1979, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful command, and failing to obey a lawful order.  His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction, and extra duty.

5.  On 3 January 1980, contrary to his pleas, the applicant was convicted by a general court-martial of three specifications of robbery of fellow Soldiers.  He was sentenced to forfeit all pay and allowances, to be confined at hard labor for 15 years, to be reduced to E-1, and to be discharged from the service with a dishonorable discharge.  On 1 April 1980, the convening authority approved the sentence.

6.  On 19 August 1980, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  In a dissenting opinion, Judge G____ commented that he would only approve 7 years of confinement.

7.  On 17 November 1980, the convening authority ordered the dishonorable discharge to be executed.

8.  Accordingly, the applicant was discharged with a dishonorable discharge on 2 February 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of a court-martial.  He had served a total of 2 years, 8 months, and 27 days of creditable active service with 395 days of lost time due to confinement.

9.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier 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.

11.  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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training.  In addition, he completed approximately 2 years of service prior to his misconduct.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service included two nonjudicial punishments, one general court-martial conviction for three specifications of robbery, and 395 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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.



      _______ _   _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)                                         AR20090000952



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ABCMR Record of Proceedings (cont)                                         AR20090000952



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