IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026991 


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 an upgrade of his dishonorable discharge.

2.  The applicant states he believes the discharge imposed on him was unjust and undeserving.  He was set up over pettiness and jealousy.  He adds that he did not lie, cheat or steal, and he had no drug history.  He further states that it was just a matter of racial overtones between him and his first sergeant.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 December 1985, three letters of support, and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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's military records show he served honorably in the Regular Army (RA) from 27 June 1975 to 15 February 1978 and from 16 February 1978 to 16 November 1980.  He reenlisted in the RA in military occupational specialty 11B (Infantryman), on 17 November 1980. 

3.  In July 1983, he accepted nonjudicial punishment (NJP) for causing a breach of peace by playing extremely loud music in his quarters.  His punishment included reduction from pay grade E-6 to E-5 and a forfeiture of $250 pay for 
2 months (suspended for 6 months).  On 11 July 1983, this punishment was vacated due to him leaving his appointed place of duty without authority.

4.  General Court-Martial Order Number 006, dated 7 February 1984, shows the applicant, then a sergeant, was found guilty of:

* being absent without leave from on or about 1 to 4 August 1983
* being disrespectful in deportment towards the first sergeant 
* wrongfully selling 155 cartons of U.S. tax free cigarettes and 72 bottles of U.S. tax free liquor, both rationed merchandise, to a person not authorized to purchase the merchandise
* willfully damaging a company area sign, property of the U.S. government

5.  On 20 December 1983, he was sentenced to be reduced to private/E-1, confinement at hard labor for 2 years, a forfeiture of all pay and allowances, and a dishonorable discharge.  The sentence was approved on 7 February 1984.

6.  He accepted NJP in July 1984 for knowingly failing to obey a general order to wit: paragraph 23, Manual for 5th Unit Confinees, by having in his possession one canteen filled with Kool-Aid, a brown paper bag with sugar, an open packet of cherry Kool-Aid and two cookies, which were prohibited in the barracks.  These articles were considered contraband.

7.  On 19 November 1985, General Court-Martial Order Number 381 shows the appellate review was completed and the sentence was affirmed and ordered to be duly executed.

8.  On 13 December 1985, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial.  He was given a dishonorable discharge.  



9.  The DD Form 214 he was issued at the time shows he completed a total of 8 years, 5 months, and 21 days of active service.  Item 29 (Dates Of Time Lost During This Period) contains the entry "Under 10 USC 972 830802-830806 & 831220-850116.  After normal expiration time of service (ETS) 850117-851213."

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provided that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence was ordered duly executed.

13.  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 was issued a dishonorable discharge pursuant to the approved sentence of a general court-martial for being absent from his unit without authority, being disrespectful in deportment towards his a noncommissioned officer, wrongfully selling 155 cartons of U.S. tax free cigarettes and 72 bottles of U.S. tax free liquor to a person not authorized to purchase the rationed merchandise, and willfully damaging a company area sign.  The appellate review was completed and the affirmed sentence ordered duly executed.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
2.  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.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses and absent any mitigating factors, the type of discharge directed, and the reasons were appropriate.  As a result, clemency is not warranted in this case.

3.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20100026991



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ABCMR Record of Proceedings (cont)                                         AR20100026991



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