IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100014631 


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 upgraded to an honorable discharge due to convenience of the government.

2.  The applicant states in effect, that he did not do what he was accused of, that he did not get along with his platoon sergeant or commanding officer, and that he was denied a compassionate reassignment.

3.  The applicant provides a list of reasons he believes should serve as the basis to upgrade his discharge and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in Boise, Idaho on 27 November 1979 for a period of 3 years and assignment to Europe.  He completed his training as a motor transport operator and was transferred to Germany 20 March 1980.  He was advanced to the pay grade of E-4 on 20 February 1981.

3.  On 25 May 1982, he was convicted pursuant to his plea by a general court-martial of committing sodomy with a male child under the age of 16 on 15 January 1982.  He was sentenced to be dishonorably discharged from the service, to be confined at hard labor for 5 years, to forfeit all pay and allowances, and to be reduced to the pay grade of E-1.

4.  On 28 June 1982, the convening authority approved only so much of the sentence as providing for a dishonorable discharge, confinement at hard labor for 13 months, forfeiture of all pay and allowances, and reduction to the pay grade of E-1. 

5.  On 10 September 1982, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.  The dishonorable discharge was ordered executed on 19 January 1983.

6.  On 3 February 1983 the applicant was discharged from the Regular Army pursuant to a duly reviewed and affirmed court-martial order. His DD Form 214 shows the reason and authority for his discharge was Army Regulation 635-200 (Enlisted Personnel), paragraph 11-1 as a result of court-martial, other.  He had served 2 years, 5 months, and 28 days of total active service and had 255 days of lost time due to imprisonment.

7.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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 general court-martial was warranted by the gravity of the serious offense with which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  After a thorough review of the available records, there appears to be no cause for clemency and an insufficient basis upon which to upgrade of the applicant’s dishonorable discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting the applicant's request.

3.  The applicant’s contention that he did not do what he was accused of doing was noted; however, he pled guilty to the charges against him at the time and he has provided no evidence to support such a contention.

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)                                         AR20100014631





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ABCMR Record of Proceedings (cont)                                         AR20100014631



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