IN THE CASE OF:	   

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110009393 


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, in effect, an upgrade of his dishonorable discharge.

2.  The applicant states the following:

	a.  He was sent to trial against the recommendation of the lawyer because his company commander wanted to make an example of him.  "If you look at the charge and look at the time [you can see] it was a black and white thing."  His father had been a staff sergeant and he planned to outrank him.  He would like to get some of his honor back.  He loves his country and still loves the Army.  

	b.  He is currently a member of the Incarcerated Veterans Program at the Martin Correctional Institution and is involved in programs to help and assist other inmates to do better in prison and to aid those who are leaving.  His honor is still with him and he would like to have a little part of it identifying with the Army.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 24 January 1978 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 3rd Battalion, 187th Infantry, 101st Airborne Division, Fort Campbell, KY.

3.  Headquarters, 101st Airborne Division, Fort Campbell, KY, General Court-Martial Order Number 13, dated 27 August 1979, shows he was found guilty at a general court-martial of one specification of rape on 24 April 1979.  He was sentenced to a dishonorable discharge, confinement for 3 years, a forfeiture of $300.00 pay for 36 months, and reduction to pay grade E-1.  The convening authority approved the sentence as adjudged, and except for the dishonorable discharge, ordered the sentence executed. 

4.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 754, dated 12 November 1980, shows the finding and sentence were affirmed and the dishonorable discharge was ordered to be executed.  

5.  On 17 February 1981, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-1, as a result of court-martial with a dishonorable characterization of service.  He completed 1 year, 3 months, and 6 days of creditable military service with 660 days, or 1 year, 9 months, and 19 days, of lost time due to being in confinement.

6.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.


7.  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.

8.  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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  Therefore, there is an insufficient basis to upgrade his 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)                                         AR20110009393



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ABCMR Record of Proceedings (cont)                                         AR20110009393



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