IN THE CASE OF:
BOARD DATE: 11 May 2010
DOCKET NUMBER: AR20090018300
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 his Dishonorable Discharge (DD) be upgraded.
2. The applicant states he is legally blind and it will be a good thing to do. He adds its been 30 years since he was discharged.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 6 January 1976 and he was awarded the military occupational specialty of armored crewman.
3. On 9 September 1976, the applicant was found guilty by a general court-martial of using force and violence to steal $150.00 in money orders, $5.36 in US currency and minted coins, and a U.S. Army ring valued at about $18.00 from a private (a total value of about $173.36); and of committing an assault upon a private by stabbing him in the left side with a knife.
4. The applicant was sentenced to a forfeiture of $250.00 a month for
36 months, confinement for 36 months, and a DD. On 7 December 1976, the convening authority approved the court-martial sentence.
5. On 3 April 1978, the applicants sentence having been affirmed, the punitive discharge was ordered to be executed.
6. On 14 July 1977, while the applicant was a prisoner in the correctional holding detachment, the applicant was convicted by a general court-martial, contrary to his plea, of striking a superior noncommissioned officer (NCO), who was in the execution of his office, by hitting him three times on the face and head with his fists.
7. The applicant was sentenced to a forfeiture of $100.00 a month for 6 months and confinement for 6 months. The sentence was ordered to be executed on 21 October 1977.
8. On 5 July 1978, the applicant was discharged with a DD. He had 5 months and 6 days of creditable active service and 744 days of lost time.
9. On 5 March 1980, the applicant again enlisted in the Regular Army. On 23 May 1980, he was released from the custody and control of the Army for misconduct, fraudulent entry.
10. Army Regulation 635-200 sets forth the basic authority for 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 members 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.
11. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant was convicted by two general courts-martial for crimes of violence against a fellow Soldier and an NCO. This was serious misconduct and certainly warranted a DD.
2. The applicant requests clemency based on the passage of time and the fact that he is legally blind.
3. While it is regrettable that the applicant is legally blind, neither this nor the passage of time forms the basis to upgrade a properly issued 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.
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ABCMR Record of Proceedings (cont) AR20090018300
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