IN THE CASE OF:	

		BOARD DATE:	 25 February 2010 

		DOCKET NUMBER:  AR20090014758 


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, under honorable conditions, discharge.

2.  The applicant states that he feels he was unjustly imprisoned.  He was made to look like the bad guy and did not get a fair trial.  He also states, in effect, that he now needs medical benefits and he should be entitled to them.

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.  The applicant's record shows he enlisted in the Delayed Entry Program on 5 December 1979.  He enlisted in the Regular Army in pay grade E-1 on 26 December 1979 for 3 years.  He completed training and was awarded military occupational specialty (MOS) 05B, radio operator.  He was advanced to pay grade E-3 on 26 December 1980.

3.  On 31 July 1981, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order and disrespect towards a superior noncommissioned officer on 29 June 1981.  His punishment included a reduction to pay grade E-2 (suspended for 30 days) and 14 days extra duty.  He did not appeal the punishment.

4.  The applicant was convicted by a general court-martial of robbery and committing an assault upon a person by striking him with a stick and did thereby intentionally inflict grievous bodily harm (nasal-bone contusion and three broken teeth) on 30 August 1981, and negligently destroying with his fist military property of the United States and assault with his fist on 5 September 1981.  The applicant was sentenced to a reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for five years, and a dishonorable discharge.  The sentence was adjudged on 12 February 1982.  The convening authority approved only so much of the sentence as provided for 42 months confinement, reduction to pay grade E-1, total forfeiture, and a bad conduct discharge.  

5.  On 14 May 1982, the U.S. Army Court of Military Review approved the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

6.  On 12 July 1982, the applicant was permanently disqualified from the Personnel Reliability Program, as the commander felt he was no longer qualified to perform his duties as required by his MOS for the following reason(s):  willful destruction of government property, robbery, simple assault, and aggravated assault.  The applicant was advised of his rights and there is no evidence he elected to submit anything in his own behalf.  

7.  On an unspecified date, the applicant was notified of the decision of the U.S. Army Court of Military Review and his right to petition the U.S. Court of Military Appeals to review his conviction and sentence.  There is no evidence the applicant acknowledged this receipt and/or petitioned the U.S. Court of Military Record within the allotted timeframe.

8.  On 27 September 1982, the appropriate authority approved the sentence and ordered it duly executed.
9.  The applicant was discharged on 19 October 1982 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of court-martial with a character of service of dishonorable.  He was credited with 2 years, 1 month, and 16 days of net active service and lost time from 12 February 1982 to 19 October 1982 due to confinement.  

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-1, provided, in pertinent part, that an enlisted person would be given a dishonorable pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.

11.  Army Regulation 635-200, paragraph 3-7b, 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 separation specifically allowed such characterization.

12.  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 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his dishonorable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

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 characterized the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted by a general court-martial for willful destruction of government property, robbery, simple assault, and aggravated assault.  He was discharged pursuant to the sentence of a general court-martial and was issued a dishonorable discharge.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  He has not provided evidence sufficient to mitigate the character of his discharge.

5.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no cause for clemency.

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)                                         AR20090014758





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ABCMR Record of Proceedings (cont)                                         AR20090014758



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