BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090016695 


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 was just 18 years of age when the incident occurred.  He was sentenced to 18 months at the United States Disciplinary Barracks.  A dishonorable discharge was not a written part of the sentence, it was an option.  He also states, in effect, his dishonorable discharge placed him at a disadvantage, but he attended college and received an associate’s degree.  He is 55 years of age and the window of opportunity is constantly diminishing.  He is remorseful for the discomfort he caused his family, country, and the Armed Forces.  

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

CONSIDERATION OF EVIDENCE:

1.  Title 10, United States 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 Regular Army (RA) in pay grade E-1 on 30 October 1970 for 3 years.  On the date of his enlistment in the RA, the applicant was 17 years of age.  He completed training and was awarded military occupational specialty 72B (communications center specialist).  

3.  On 24 November 1970, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit on 21 November 1970.  His punishment included a forfeiture of pay, 7 days of restriction, and extra duty.  

4.  The applicant was advanced to pay grade E-2 on 25 February 1971.

5.  On 27 April 1971, the applicant was convicted by a general court-martial of willfully damaging military property of the United States, assault and battery, and larceny.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $100.00 pay for 18 months, confinement at hard labor for 18 months, and a dishonorable discharge.  The military judge recommended the dishonorable discharge be suspended during his period of confinement to allow the applicant to demonstrate whether or not he was properly motivated and worthy of restoration to duty.  The sentence was adjudged on 4 May 1971 and approved on 16 June 1971.

6.  On 22 November 1971, the Provost Marshal General disapproved the applicant’s restoration to duty, parole, and clemency.

7.  On 19 September 1972, the United States Army Court of Military Review affirmed the applicant’s sentence.   

8.  On 24 October 1972, the United States Army Court of Military Review notified the applicant of his right to petition the United States Court of Military Appeals to review his conviction and sentence.  There is no evidence the applicant petitioned the United States Court of Military Appeals within the allotted timeframe.



9.  On 26 January 1973, the convening authority ordered the applicant’s dishonorable discharge, forfeiture, reduction, and confinement be duly executed.

10.  The applicant was discharged on 1 February 1973 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of a general court-martial with a character of service of dishonorable.  He was credited with 1 year, 1 month, and 8 days of net active service and 450 days of lost time due to being in confinement.  

11.  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 discharge 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.

12.  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.

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 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 the applicant was convicted by a general court-martial of larceny, willful damage of government property, and assault and battery.  He was sentenced to confinement for 18 months and a dishonorable discharge; however, it was recommended that he be allowed to return to duty if he could demonstrate he was properly motivated and worthy of restoration upon his release from confinement.  His restoration to duty, parole, and clemency were disapproved and he was discharged pursuant to the sentence of a general court-martial with a dishonorable discharge.

4.  The applicant's contention that his youth impacted his misconduct and ability to serve successfully is without merit.  The applicant was 17 years old when he enlisted and 17 years and 7 months of age at the time of his misconduct.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who served successfully and completed their military service obligations.  Additionally, the applicant is advised that the Army does not now have nor has it ever had a policy of automatically upgrading an individual's discharge based on an individual’s age at the time of an incident involving misconduct. 

5.  The applicant has provided no evidence to show that his discharge was unjust or evidence sufficient to mitigate the character of his discharge.  

6.  The Board is empowered to change the characterization of service and the narrative reason for discharge if clemency is determined to be appropriate.  The applicant's 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 basis 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)                                         AR20090016695



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ABCMR Record of Proceedings (cont)                                         AR20090016695



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