IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025147 


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 upgrade of his dishonorable discharge.

2.  The applicant states his case was found not to be in self-defense.  He still contends he is innocent and feels he was railroaded.  He honorably served his country for 11 years.  One night of bad judgment has caused a life of despair.

3.  The applicant provides 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 on 6 July 1976 and he held military occupational specialty 71G (Patient Administration Specialist).

3.  On 22 October 1987, the applicant pled guilty at a general court-martial to:

* resisting apprehension by an armed forces policeman
* assaulting a Soldier with a dangerous weapon
* assaulting a civilian and inflicting grievous bodily harm
* unlawfully carrying a concealed weapon

He was found guilty of all charges and specifications and sentenced to reduction to the grade of E-1, confinement for 6 years, forfeiture of all pay and allowances, and a dishonorable discharge.

4.  On 1 December 1987, the convening authority approved the reduction to E-1, total forfeiture, 5 years confinement, and a dishonorable discharge.  Except for the dishonorable discharge, the sentence was ordered to be executed.

5.  On 3 February 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

6.  On 16 March 1988, the U.S. Army Court of Military Appeals denied the applicant's petition for grant of review of the U.S. Army Court of Military Review's decision.

7.  Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, General Court-Martial Order Number 129, dated 25 April 1988, shows the sentence was affirmed.  The applicant would be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, and that after completion of the confinement, the applicant's dishonorable discharge would be executed.

8.  He was discharged from the Army on 17 February 1989.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
3-10, as a result of court-martial, with a dishonorable discharge.  This form further shows he completed 11 years, 3 months, and 13 days of creditable active service with 485 days of time lost.


9.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded.  However, he did not provide evidence to support his contention that he was not guilty.

2.  The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

3.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for a discharge upgrade.  Therefore, there is insufficient basis to grant his requested relief.

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 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.


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)                                         AR20100025147



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ABCMR Record of Proceedings (cont)                                         AR20100025147



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