IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019258 


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 an upgrade of his dishonorable discharge.

2.  The applicant states he feels he was treated unjustly.  He was young and mistreated.  At the time, he had no one to tell him any better.  It seemed like everyone was working against him.  He would like to have his discharge upgraded before he departs this earth.

3.  The applicant provides two pages of Standard Form 600 (Health Record) and a letter of commendation.

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 was born on 22 August 1957 and he enlisted in the Regular Army on 18 March 1976, at age 18.  He held military occupational specialty 11C (Indirect Fire Infantryman).

3.  On 23 December 1976, he received nonjudicial punishment (NJP) under the provisions Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order and for failing to report to his appointed place of duty.

4.  On 2 August 1977, he received NJP under the provisions Article 15, UCMJ, for disobeying a lawful order and for failing to report to his appointed place of duty on two separate occasions. 

5.  On 23 January 1978, a Bar to Reenlistment was placed against the applicant due to his two Article 15s and his unsatisfactory performance and attitude.  

6.  On 13 April 1978, he was convicted by a general court-martial of:

* one specification of stealing a wallet by means and force on 8 March 1978
* one specification of receiving stolen property on 16 March 1978
* he was sentenced to serve 28 months in confinement, a forfeiture of all pay and allowances, and a dishonorable discharge

7.  On 18 May 1978, the convening authority approved the sentence except for the portion of the sentence in excess of 13 months in confinement, and except for the dishonorable discharge ordered it executed.  

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 132, dated 19 March 1979, shows that as his sentence had been affirmed, the convening authority ordered the applicant's dishonorable discharge sentence executed.

9.  On 18 June 1979, he was discharged from the Army.  The DD Form 214 (Report of Separation 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 an dishonorable characterization of service.  He completed 2 years, 3 months, and 13 days of creditable military service with 462 days of time lost due to confinement.

10.  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.

11.  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.

12.  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 offenses 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.  The applicant contends that his discharge should be upgraded because he was young at the time of his service.  Records show that he was age 19 at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  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)                                         AR20110019258



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019258



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1