IN THE CASE OF:
BOARD DATE: 26 August 2010
DOCKET NUMBER: AR20100007484
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 upgrade of his dishonorable discharge to a general discharge.
2. The applicant states that he was an emotional, immature young man when he was on active duty, and made fast decisions without giving any thought of what the consequences might be. Since his discharge he married, had children, and works steadily. However, he barely earns enough to support his family's daily needs. He believes he may earn more if his discharge was upgraded.
3. The applicant provides letters from his wife's sister, his town's mayor, and a minister. In those letters it is stated that the applicant has earned the respect of the townspeople by his actions, which include assisting people who lost their homes or their electricity (the applicant is an electrician) after a tsunami.
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 25 February 1974 and he was awarded the military occupational specialty of an indirect fire infantryman.
3. On 9 March 1976, the applicant was convicted by a general court-martial for, on or about 23 December 1975, attempting to murder a private first class [PFC/E-3], by means of cutting him with a broken bottle and by kicking him in the head. He was sentenced to a reduction to pay grade E-1, confinement for
8 years, forfeiture of $150.00 a month for 96 months, and a dishonorable discharge.
4. On 17 February 1977, the U.S. Army Court of Military Review affirmed the findings and sentence.
5. On 9 June 1977, the general court-martial's sentence having been affirmed, its sentence was ordered to be executed.
6. The applicant's DD Form 214 shows he was subsequently discharged on
4 January 1978 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, by reason of court-martial, with a dishonorable discharge. He completed 2 years, 1 month, and 26 days of total active service.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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.
8. 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 contends his dishonorable discharge should be upgraded to a general discharge so he can earn more money to support his family.
2. The applicant has submitted documents attesting to his exemplary post-service conduct and community service; however, this must be weighed against the applicant's commission of a violent crime against another Soldier.
3. While the applicant's intent to earn more money with a discharge upgrade to support his family is admirable, it is insufficient to mitigate his dishonorable discharge.
4. In view of the foregoing, there is no basis for granting the applicants requested relief.
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) AR20100007484
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ABCMR Record of Proceedings (cont) AR20100007484
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