IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090012331 


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 that he was 20 years of age, had little education, and he thought the Army was his life.  He made a mistake and all he is asking for is another chance.  He believes the punishment was more than it should have been for the crime that was committed.  

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 records show he enlisted in the Regular Army (RA), in pay grade E-1, on 22 August 1969, for 2 years.  On the date of his enlistment in the RA, the applicant was 18 years and 11 months of age and he had completed 9 years of schooling.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was advanced to pay grade E-4 on 18 May 1970.  

3.  On 10 July 1970, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being incapacitated for the proper performance of his duties, as a result of previous indulgence of intoxicating liquor, on 5 July 1970.  His punishment included a reduction to pay grade E-2, a forfeiture of $45.00 pay for two months, and 60 days restriction.  He did not appeal the punishment.

4.  The applicant was accordingly reduced to pay grade E-2 on 15 July 1970.

5.  The applicant's records show he was placed in pre-trial confinement on 17 November 1970.

6.  On 15 January 1971, the applicant was convicted by a general court-martial of being absent without leave (AWOL) from 10 November 1970 to 16 November 1970; stealing the property of another individual by means of force and putting the individual in fear, on 7 November 1970; stealing the property of another individual, by means of force and putting the individual in fear, on 12 November 1970; and escaping from lawful confinement on 26 November 1970.  The applicant was sentenced to be discharged from the Army with a dishonorable discharge, confinement at hard labor for two years, forfeiture of all pay and allowances, and reduction to pay grade E-1.  The sentence was adjudged on 15 January 1971.

7.  On 4 March 1971, the Department of the Army, Headquarters, 2nd Infantry Division, APO San Francisco, approved the sentence as adjudged and forwarded the record of trial to The Judge Advocate General of the Army for review by the Court of Military Review.

8.  On 14 June 1971, forfeitures in excess of $83.00 pay per month were suspended.  

9.  On 10 September 1971, the Department of the Army, Office of the Provost Marshal General, announced that the Secretary of the Army had denied the applicant's restoration to duty and disapproved clemency.


10.  On 25 April 1972, the U.S. Army Court of Military Review opined 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, affirmed the finding of guilty and the sentence.

11.  The applicant was discharged in pay grade E-1 on 10 July 1972, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 11-1a, as a result of a general court-martial, with a character of service of dishonorable.  He was credited with 1 year, 2 months, and 19 days of net active service and 608 days of lost time due to AWOL and confinement.

12.  The applicant’s records contain no documented evidence of acts of valor or achievement warranting an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

14.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, further provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, US Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial 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 evidence shows that the applicant was convicted by a general court-martial and he was found guilty of AWOL, stealing the property of two individuals by means of force and putting them in fear, and escaping confinement.  He was discharged pursuant to the sentence of a general court-martial and he was issued a dishonorable discharge after the sentence was affirmed.

2.  The general court-martial the applicant received was warranted by the gravity of the offenses charged.  A dishonorable discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall record and disciplinary history, warranted this punishment.

3.  The applicant's contention that he was young, had little education, and thought the Army was his life was considered; however, he has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age and who had completed less or more years of schooling who served successfully and completed their term of service. There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  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 any 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)                                         AR20090012331



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ABCMR Record of Proceedings (cont)                                         AR20090012331



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