IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100014730 


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 a general discharge and his narrative reason for separation be changed to administrative.

2.  The applicant states he is homeless and a discharge upgrade would entitle him to housing and job assistance.  He states he served his punishment for 2 years and is now reformed.  He states he has had no new criminal violations. 

3.  The applicant does not provide any documentary evidence 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.  The applicant enlisted in the Regular Army on 25 September 1979 for a
4-year period of service.  He completed his initial entry training and was awarded military occupational specialty 05C (Radio Teletypewriter Operator).

3.  The applicant's records are devoid of documents showing acts of valor or any significant achievements.

4.  On 5 May 1981, the applicant was convicted by a general court-martial for one specification of attempted voluntary manslaughter on or about 28 March 1981.
 
5.  The general court-martial sentence consisted of reduction to private/pay 
grade E-1, forfeiture of all pay and allowances, confinement to hard labor for 3 years, and a dishonorable discharge.

6.  On 22 May 1981, the convening authority approved the sentence.

7.  On 11 September 1981, the U.S. Army Court of Military Review determined the military judge made an error when the military judge: 

Erroneously believed that the accused could be found guilty of attempted voluntary manslaughter by finding intent to inflict grievous bodily harm . . . one element of attempted voluntary manslaughter is the specific intent to kill, even though intent to inflict grievous bodily harm would suffice as an element of the consummated offense. 

8.  The U.S. Army Court of Military Review determined it could correct the error and affirm the findings of aggravated assault which is a lesser criminal offense.  In addition, it determined that the trial judge's erroneous finding of guilty to the greater offense of attempted voluntary manslaughter did not create an impermissible impact which resulted in a more severe punishment.  Therefore, it affirmed their finding that the applicant was guilty of an assault for he intentionally inflicted grievous bodily harm to a Soldier by lacerating his spleen.  This court then affirmed the sentence provided in the general court-martial. 

9.  General Court Martial Order Number 136, dated 22 February 1982, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS ordered the dishonorable discharge executed. 

10.  On 29 March 1982, the applicant was discharged accordingly under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) as a result of a court-martial.  His net active service for this period was 1 year, 6 months and 3 days.  His DD Form 214 confirms he received a dishonorable discharge with time lost under the provisions of Title 10, U.S. Code 972 from 28 March 1981 to 29 March 1982.  

11.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial with the appellate review completed and the affirmed sentence ordered duly executed.  This reason for separation and discharge will be entered on the DD Form 214.

	b.  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.

	c.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at that time, governs the separation of enlisted Soldiers on active duty.  Chapter 3 (Character of Service/Description of Separation), Section III Characterization of Service), 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.  

	d.  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 records are 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.

	e.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Specifically, the narrative reason for separation is based on the regulatory or statutory authority that directs separation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded to a general discharge based on the passage of time and to enable him to receive Veterans benefits for housing assistance and job placement .  

2.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offense for which he was 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.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offense for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if an error exists or clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  As there is no evidence of error and clemency is not warranted, there is no requirement to change the reason for his discharge or his characterization of service.  

6.  The ABCMR does not correct records solely to all an individual to receive Veterans benefits by the county, state or Federal government.



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)                                         AR20100014730



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ABCMR Record of Proceedings (cont)                                         AR20100014730



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