IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100007236 


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, in effect, an upgrade of his dishonorable discharge.

2.  The applicant states he was young at the time and did something foolish without thinking before acting.  He made a mistake, but he learned from his mistake.

3.  The applicant did not provide any additional documentary evidence.

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 records show he was born on 10 June 1960 and enlisted in the Regular Army for a period of 4 years on 11 July 1978 at 18 years of age.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant's records also show he served in Germany from 6 November 1978 to 10 November 1980 and he was awarded the Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar.

4.  His records further show he was promoted through the ranks to specialist four/E-4 and he was assigned to the 3rd Battalion, 39th Infantry, Fort Lewis, WA.

5.  On 2 March 1982, he pled guilty at a general court-martial to one specification of committing an assault upon another Soldier by cutting him in the neck with a straight razor and did thereby intentionally inflict grievous bodily harm upon him on or about 31 December 1981.  The court sentenced him to a reduction to private/E-1, a forfeiture of all pay and allowances, confinement at hard labor for 22 months, and a dishonorable discharge.

6.  On 1 April 1982, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 7 June 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  On 19 October 1982, the unexecuted portion of his sentence to confinement was ordered remitted effective 22 October 1982.

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 875, dated 15 November 1982, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

10.  The applicant was discharged from the Army on 13 January 1983.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 3 years, 8 months, and 12 days of creditable military service.  He had lost time from 1 January 1982 to 10 July 1982 and, after expiration of his term of service, from 11 July 1982 to 21 October 1982.

11.  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 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.

12.  Army Regulation 635-200 governs 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 member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.

2.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offense charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  The evidence of record shows the applicant was 18 years of age at the time of his enlistment and 21 years and 6 months of age at the time of committing his offense.  However there is no evidence that shows he was any less mature than other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age.

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.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his 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.

ABCMR Record of Proceedings (cont)                                         AR20100007236



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)