IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015625 


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, upgrade of his dishonorable discharge to an honorable discharge or that his military service records be sealed for employment purposes.

2.  The applicant states his records are not in error or unjust and acknowledges that he was wrong and punished accordingly.  However, he requests upgrade of his discharge in order to be able to seek gainful employment.

   a.  He states the trouble he got into while in the U.S. Army occurred more than 30 years ago, he is very sorry, and he regrets the decisions he made.  He adds that he accepts responsibility for his actions and holds himself accountable for his decisions.

   b.  He states he is husband, father, and grandfather and tries to set the example for his family.  He adds he recently graduated from truck driving school and he is trying to create a better future for his family and himself.

   c.  He respectfully requests the Board take into consideration the steps he has taken to improve his life and asks for help in moving him in a better direction.

3.  The applicant provides five certificates, a progress report, business card, his driver's license, and college transcript.


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 26 May 1978.  Upon completion of training he was awarded military occupational specialty 63F (Recovery Specialist).

   a.  He served overseas in U.S. Army Europe (Germany) from 5 November 1978 through 7 July 1980.

   b.  He attained the rank of specialist four (SP4)/E-4 on 1 October 1979.

3.  The applicant was tried at a general court-martial in September 1980.  He was found guilty of:

	a.  22 specifications (of the 27 specifications) of making and uttering worthless checks;

	b.  stealing property of the Erlangen Audio/Photo Club of the value of $1,715.48;

	c.  stealing property of the Erlangen Audio/Photo Club of the value of $7,078.00; and

	d.  two specifications of entering a Government building to commit a criminal offense of larceny.

4.  On 11 September 1980, he was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement at hard labor for 9 years, and a dishonorable discharge from the service.


5.  On 8 December 1980, the convening authority approved only so much of the sentence that provided for reduction to PV1/E-1, confinement at hard labor for
3 1/2 years, forfeitures of all pay and allowances, and a dishonorable discharge, and ordered it executed.

6.  On 12 May 1981, the U.S. Army Court of Military Review, on consideration of the entire record, found the approved findings of guilty and the sentence correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed and the applicant was advised of the decision on 21 May 1981.

7.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 468, dated 26 June 1981, confirmed that in the general court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered executed.

8.  The applicant's DD Form 214 shows he was dishonorably discharged on
15 July 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1.  At the time he had completed 7 months and 17 days of net active service this period and 1 year, 5 months, and 25 days of total prior active service.  Item 18 (Remarks) shows he had time lost under Title 10, U.S. Code, section 972, from 8 July 1980 through 15 July 1981.

9.  In support of his request, the applicant provides the following documents:

	a.  Two certificates, a progress report, his business card, and a State of New Mexico Driver Record that shows he completed the 200-hour Professional Commercial Driver Training Program and a 6-hour Defensive Driving Course for Professional Trucker Drivers in April 2010, and that he is the Campus Manager at the Mesilla Valley Training Institute, Las Cruces, NM;

	b.  A certificate of completion that shows he successfully completed the Outpatient Program at Alcohol Drug and Mental Health Counseling Services on 20 February 2003;

	c.  Two certificates, dated 30 August 1996 and 18 September 1996, that show his membership in the National Black Belt Club and United Martial Artists Against Crime; and

   d.  An unofficial transcript from the New Mexico State University, Alamogordo Community College, that shows the applicant's progress toward a degree in the Art and Graphic Design program.

10.  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.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-1, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of enhancing the applicant's eligibility for employment or Government benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  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 clemency is determined to be appropriate to moderate the severity of the sentence imposed.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100015625



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ABCMR Record of Proceedings (cont)                                         AR20100015625



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