IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100020495 


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, the wife of a deceased former service member (FSM), requests her husband’s dishonorable discharge be upgraded to honorable.  

2.  She states the FSM:

* was promoted to Chief Warrant Officer Two
* was a Rotary Wing Pilot in military occupational specialty 100B
* received the National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal with four bronze service stars, Army Good Conduct Medal, Army Aviation Badge, Air Medal and two overseas service bars
* was diagnosed with diabetes in 2006

3.  She contends the dishonorable discharge was:  

* an administrative discharge
* received after the FSM had repaid an overpayment
* an injustice to the FSM and his family after he served 15 years of honorable service 



4.  She provides:

* Three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 2 November 1960, 2 November 1966, and 11 August 1968
* DD Form 214 (Report of Separation from Active Duty) for the period ending 9 January 1974
* Medical reports
* Certificate of Death

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.  After completing prior enlisted service, the FSM was appointed a Reserve Warrant Officer One on 12 August 1968 with a concurrent call to active duty.  He was promoted to Chief Warrant Officer Two on 12 August 1969.  

3.  On 20 January 1972, he was convicted by a general court-martial pursuant to his pleas of 21 specifications of wrongfully appropriating U.S. currency, the property of the U.S. Government.  He was sentenced to be dishonorably discharged from the service.  On 23 February 1972, the convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  

4.  The decision of the U.S. Army Court of Military Review is not available.  However, on 9 January 1974, his dishonorable discharge was ordered executed via General Court-Martial Order Number 1, Headquarters, Department of the Army which noted his case had been affirmed and all appellate procedures complied with.  



5.  His DD Form 214 shows he was released from active duty on 31 August 1973 pending completion of appellate review under the provisions of Army Regulation 635-120 (Officer Personnel), chapter 12 with a dishonorable discharge.  He completed 5 years and 20 days of creditable active service.  

6.  Army Regulation 635-100 (Officer Personnel) 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.

7.  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 contentions have been acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  The FSM’s service record shows he pled guilty and was convicted by a general court-martial for 21 specifications of wrongfully appropriating U.S. currency.  

3.  His 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.

4.  Based on the seriousness of the misconduct for which the FSM 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)                                         AR20100020495





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1