BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011366 


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 to a general discharge under honorable conditions for the period ending 21 August 1981 and a copy of his DD Form 214 (Report of Separation from Active Duty) which shows his honorable discharge for the period ending 15 July 1977.

2.  The applicant states he didn't take his career seriously during his second term of service and began to abuse drugs and alcohol which ultimately resulted in charges against him for attempted murder and rape and his incarceration at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.  Throughout his incarceration he attended college and received his associate's degree.  He was released early from his 10-year sentence.  After 32 years, he is a preacher who preaches against abuse of the body and mind.  He regrets the mistakes he made at such a young age and feels he deserves a second chance.

3.  The applicant provides a self-authored statement.

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 was born on 4 June 1955 and enlisted in the Regular Army on 12 July 1974, at 19 years of age.  It appears he completed initial entry training and was awarded military occupational specialty 76Y (Unit/Organization Supplyman).  The highest rank/grade he attained while serving on this enlistment was specialist four (SP4)/E-4.  On 15 July 1977, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  On 11 October 1977, the applicant enlisted in the Regular Army at 22 years of age.  He was assigned to Headquarters and Headquarters Troop, 1st Battalion, 4th Cavalry Regiment, Fort Riley, Kansas, and performed duties as a supply specialist.  The highest rank/grade he attained while serving during this enlistment was SP4/E-4.  However, he held the rank/grade of private/E-1 at the time of discharge.

4.  On 4 January 1980 contrary to his pleas, the applicant was convicted by a general court-martial of one specification of raping a Soldier on 14 March 1979 and one specification of assaulting a Soldier with a means likely to produce grievous bodily harm by shooting him in the chest with a .357 magnum caliber revolver on 24 March 1979.  The court sentenced him to be reduced to the grade of E-1, to be confined at hard labor for 10 years, to forfeit all pay and allowances, and to be discharged from the service with a dishonorable discharge.

5.  On 4 January 1980, the convening authority approved the sentence and the record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 31 March 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, General Court-Martial Order Number 542, dated 7 August 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

8.  The applicant was discharged from the Army on 21 August 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 1 year, 11 months, and 23 days of creditable military service during this period with lost time from 4 October 1979 to 21 August 1981.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or bad conduct discharge.  It states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and affirmed before the sentence is ordered duly executed.

10.  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.

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.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  His record shows he was over 23 years of age at the time of his offenses.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

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, the seriousness of his offenses, and the lack of any significant mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant is entitled to a copy of his DD Form 214 for the period ending 15 July 1977.

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; however, the applicant will be furnished a copy of his DD Form 214 for the period ending 15 July 1977.



      ____________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)                                         AR20110011366



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ABCMR Record of Proceedings (cont)                                         AR20110011366



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