IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110008369 


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 to an honorable discharge.

2.  The applicant states he served his country in the Armed Forces before his discharge.  Since his discharge, he has matured and become responsible.  He regrets the actions which led to his discharge and adds he was experimenting with drugs at the time.

3.  The applicant does not provide any 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 enlisted in the Regular Army on 22 October 1975.  The highest rank/grade he held was specialist four (SP4)/E-4.

3.  He accepted nonjudicial punishment (NJP) on three occasions for:

* assaulting a private on 2 February 1977 by striking him with a chair on the hand and wrist with a force likely to produce grievous bodily harm
* being absent from his place of duty on 16 September 1977
* assaulting a superior noncommissioned officer on 5 October 1977 by pushing him in the chest with the right side of his body

4.  On 26 April 1978, the applicant was convicted by a general court-martial of:

	a.  three specifications of by means of force and violence and by putting him in fear, attempt to steal from three Soldiers against their will, lawful currency of the United States of an unknown value, the property of the said Soldiers, by pointing a handgun at them and demanding the said currency.

	b.  two specifications of committing an assault on two Soldiers by shooting at them with a dangerous weapon, to wit, a pistol.

5.  The court sentenced the applicant to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 8 years.

6.  The convening authority approved only so much of the sentence as provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 5 years.

7.  On 22 January 1979, the U.S. Army Court of Military Review affirmed the court's findings and sentence, as approved by the convening authority.  The U.S. Court of Military Appeals denied his petition for review on 23 April 1979.

8.  Accordingly, on 7 May 1979 the sentence was ordered to be executed.

9.  On 6 September 1979 the applicant was discharged from the Regular Army with a dishonorable discharge.  He completed 2 years, 1 month, and 23 days of creditable active service with 631 days of time lost.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Dishonorable and Bad conduct Discharge), paragraph 11-1 states a member 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.

11.  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.  While it is commendable that the applicant has matured and is now responsible, these characteristics are insufficient to warrant upgrading a properly issued discharge.

2.  The applicant had a record of violent offenses prior to his court-martial, and he was convicted by a general court-martial of robbing three Soldiers at gunpoint. Such violent and serious misconduct certainly warranted a dishonorable discharge.

3.  The applicant's contention that he was experimenting with drugs would have been considered and conclusively adjudicated at his court-martial and in the appellate process.  However, he was not charged with any drug abuse offense.  Therefore, this issue is without merit.

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.

5.  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)                                         AR20110008369



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008369



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1