BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007010 


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 changed to uncharacterized.

2.  The applicant states he would like to try and better his life and increase his chances to get a better job to better provide for his family.

3.  The applicant provides no supporting documentation.

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 enlisted in the Regular Army on 18 September 1979, completed training, and was awarded military occupation specialty 13B (Cannon Crewman).

3.  He was assigned duty in Germany on 26 May 1983 and was promoted to sergeant/E-5 effective 6 November 1983.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on 19 February 1984 for being absent without leave for 1 day.

5.  On 24 July 1984, a general court-martial found the applicant guilty of rape.  The sentence imposed was confinement for 5 years, total forfeiture of all pay and allowances, dishonorable discharge, and reduction to pay grade E-1.

6.  On 7 April 1984, the convening authority approved the findings and sentence except for a reduction of the period of confinement to 2 years and 6 months.

7.  On 10 October 1984, the U.S. Court of Military Review affirmed the findings and sentence.

8.  On 26 November 1984, the Commandant, U.S. Disciplinary Barracks, suspended the forfeiture of $275.00 pay per month.

9.  On 4 September 1985 the U.S. Court of Military Appeals denied the applicant's request for review.

10.  General Court-Martial Order Number 280, dated 25 September 1985, states that the provisions of Article 71(c) having been complied with, the sentence was to be executed.

11.  The applicant was dishonorably discharged on 21 October 1985.  He had 4 years, 5 months, and 26 days of creditable service with 1 year, 7 months, and 8 days of lost time.

12.  Article 71(c), UCMJ, states that when a court-martial sentence includes a dishonorable discharge, the dishonorable discharge may not be executed until there is a final judgment as to the legality of the proceedings.  A judgment as to the legality of the proceedings is final in such cases when the review is completed by the appellate Court of Military Review.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part, it provides the following:

	a.  An uncharacterized separation is utilized for entry-level-status separations for a Soldier who has less than 181 days of continuous active military service.

	b.  A discharge certificate will be issued based upon the character of service rendered.

	c.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty.

	d.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory, but not so meritorious as to warrant an honorable discharge.

	e.  A dishonorable discharge is a punitive discharge that can be given only as a result of an approved sentence of a general court-martial.

14.  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 Army Board for Correction of Military Records 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.  The applicant states he would like to try and better his life and increase his chances to get a better job to better provide for his family.

2.  The applicant was not in an entry-level status at the time of his discharge; therefore, he cannot be afforded an uncharacterized discharge.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he was discharged.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit 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)                                         AR20100007010



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ABCMR Record of Proceedings (cont)                                         AR20100007010



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