IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110000200 


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 that his dishonorable discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states:

* He was not given sufficient defense during his court-martial
* He did not strike an officer
* He was told "a bad conduct discharge and 3 years [confinement] or take a dishonorable discharge and 1 year"

3.  The applicant provides no additional documents.

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 record shows he enlisted in the Regular Army (RA) on 28 February 1972 and served until he was honorably discharge for the purpose of immediate reenlistment on 15 January 1973.  He reenlisted in the RA on 16 January 1973.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for committing the following offenses:

* on 6 April 1973 for failing to go at the appointed time to his prescribed place of duty and leaving his guard post without being properly relieved
* on 4 May 1973 for failing to go at the appointed time to his prescribed place of duty

4.  Special Court-Martial Order Number 9, Headquarters, 36th Engineer Group (Combat) Fort Benning, GA, dated 1 August 1973, shows that in June 1973, he was convicted of using disrespectful language toward two noncommissioned officers.  He was sentenced to be reduced to private E-1 and to perform hard labor for 45 days without confinement.  The sentence was adjudged on 27 June 1973 and approved on 1 August 1973.

5.  General Court-Martial Order Number 32, Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, dated 6 June 1974, shows that in March 1974, he was convicted in accordance with his guilty pleas of striking a commissioned officer and wrongfully communicating a threat to a commissioned officer.  He was sentenced to be discharged with a dishonorable discharge, forfeiture of all pay and allowances, and to be confined at hard labor for 22 months.  The sentence was adjudged on 27 March 1974.

6.  The convening authority approved only so much of the sentence as provided for the dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 12 months was approved.  Subsequent forfeitures in excess of $120.00 per month were suspended.

7.  On 13 August 1974, the U.S. Army Court of Military Review affirmed the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.  

8.  On 23 September 1974, the appropriate authority ordered the sentence, as modified, duly executed.  

9.  On 15 November 1974, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 11-1, by reason of a dishonorable discharge.  The DD Form 214 (Report of Separation From Active Duty) he was issued shows he held the rank of private/E-1, completed a total of 1 year, 9 months and 6 days of active military service, and had 342 days lost.

10.  References:

	a.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 provides an enlisted person 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 has been ordered duly executed.  

	b.  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 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 contention that his dishonorable discharge should be upgraded to a general under honorable conditions discharge was carefully considered and found to lack merit.  The applicant was tried and convicted of striking an officer, and threatening an officer in accordance with his guilty pleas.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  In view of the circumstances in this case, the applicant has not established a basis for clemency.  He has not shown error, injustice, or inequity for the relief he now requests.  

3.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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 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)                                         AR20110000200



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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