BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100011453 


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 be upgraded to general under honorable conditions.  

2.  He states he was given a misfeasance [improper and unlawful execution of an act that in itself is lawful and proper] dishonorable discharge by an "ex delicto" [Latin for a reference to something that arises out of a fault or wrong] trial court proceeding.  He contends he was attacked and strangled to the point of unconsciousness according to the report of two investigators and his response was only according to his combat readiness training.  

3.  He provides copies of a lawsuit and claims petition in support of his application.  

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.  He enlisted in the Regular Army on 9 October 1979 for a period of 3 years.  He was assigned to Fort Gordon, GA for one station unit training in military occupational specialty (MOS) 05C (Radio Teletype Operator). He was an academic failure from 05C training and was reassigned to Fort Jackson, SC in March 1980 for advanced individual training in MOS 94B (Food Service Specialist).  

3.  On 3 June 1980, he was convicted by a general court-martial of the following offenses:

* Absent without leave (AWOL) from 1 April 1980 to 9 April 1980 and from 13 April 1980 to 14 April 1980
* Committing assault with intent to murder
* Unlawfully carrying a concealed weapon
* Violating a lawful general regulation by possessing a knife with a blade over 3 inches in length
* Larceny

4.  He was sentenced to confinement at hard labor for a period of 10 years, forfeiture of all pay and allowances, and to be dishonorably discharged from the service.  On 11 July 1980, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 2 years, and total forfeiture of all pay and allowances.  

5.  On 29 January 1981, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.  He acknowledged receipt of the decision of the U.S. Army Court of Military Review and was advised of his right to petition the Court of Military Appeals for a grant of review with respect to any matter of law, within 30 days.  The dishonorable discharge was ordered to be executed on 24 April 1981.  

6.  He was discharged on 11 June 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11 as a result of court-martial with issuance of a dishonorable discharge.  He completed 5 months and 6 days of creditable active service with 433 days of lost time.

7.  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.

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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  His contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of his discharge.

3.  His service record shows he was convicted by a general court-martial for two specifications of AWOL, committing assault with intent to murder, unlawfully carrying a concealed weapon, possessing a knife with a blade over 3 inches, and larceny.  

4.  Based on the seriousness of the misconduct for which he was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's 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)                                         AR20100011453





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011453



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1