IN THE CASE OF:	  

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110010932 


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 a general discharge.

2.  He states:

* he witnessed four Soldiers rob another Soldier of $47.00 because he was different
* he did not participate in the robbery, but he was charged due to association and a line-up 
* he believes he should have received a general discharge

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two character references.  

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 12 August 1968 for a period of two years.  

3.  On 19 June 1969, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being found drunk while on duty.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 10 to 11 November 1969 (2 days).  His service record does not indicate he received nonjudicial punishment for this period of AWOL.  

5.  On 27 November 1970, he was convicted contrary to his plea by a general court-martial of stealing from two individuals by means of force and against their wills, a total of $47.00 in U.S. currency.  

6.  He was sentenced to be discharged from the service with a dishonorable discharge, to forfeit all pay and allowances, and to be confined at hard labor for 4 years.

7.  On 16 December 1970, the court-martial convening authority approved the sentence.  The forfeitures of pay and allowances became due after the date of the convening authority action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and he was to be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere, as competent authority would direct.

8.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 30 November 1971.  

9.  The dishonorable discharge was ordered to be executed on 16 March 1972.

10.  On 10 April 1972, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
11-1a with a separation program number of 292 (Other than Desertion (Court-Martial)).  He completed 2 years and 25 days of total active service with 582 days of time lost.

11.  He provided a character reference from a retired sergeant major who is also a friend of his family.  He attested he has known the applicant and his family the majority of his life.  The applicant was described as a brave and noble person who served in Vietnam and should not have to continue to pay for his mistake of over 40 years ago.  He supported upgrade of the applicant's discharge to honorable or at least to general under honorable conditions.  

12.  He also provided a character reference from a minister who was also his former trainer driver at Merit Truck Company.  He attested he has known the applicant for 15 years.  The applicant was given accolades for his high degree of integrity, responsibility, and ambition.  The applicant was described as a man who was dedicated to his family and one who always put God first in his life.  

13.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 11-1a of the version of the regulation in effect at that time, stated that an enlisted person would be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge.  

	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.

14.  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's trial by court-martial was warranted by the gravity of the offenses charged.  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.  The applicant contends he witnessed four Soldiers rob another Soldier and that he didn't participate in the robbery.  However, that was an evidentiary issue that should have been raised at trial or during the appellate process.  
3.  His service record shows he received one Article 15 and he was convicted by a general court-martial for robbing two individuals of a total of $47.00 in U.S. currency.  He also accrued 582 days of time lost during his tenure of service.  

4.  He also contends that he should have received a general discharge.  However, based on the seriousness of the misconduct for which he was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting his requested relief.

5.  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)                                         AR20110010932





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ABCMR Record of Proceedings (cont)                                         AR20110010932



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