DOCKET NUMBER:  AR20110022339 


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.

2.  He states, in effect, he:

* he was a teenager at the time; he was coerced, and pressured by his peers, and others into admitting to the crime, while in adverse conditions
* was a witness and not an alleged perpetrator 
* he was also being considered for a medical discharge at that time

3.  He 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’s service record shows he was born on 19 January 1963.  He enlisted in the Regular Army on 24 February 1981 at age 18.  He completed the training requirements and he was awarded military occupational specialty 51R (Electrician).  

3.  On 3 February 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being found drunk on his post.

4.  On 13 January 1983, the applicant was convicted pursuant to his plea by a general court-martial of two specifications of armed robbery.  He was sentenced to be dishonorably discharged from the service, confinement at hard labor for 
1 year, a forfeiture of $300.00 pay for 12 months, and a reduction to private/E-1.  

5.  On 18 January 1983, the court-martial convening authority approved the sentence.  The forfeiture of pay and allowances became due after the date of the convening authorities action.  He was to be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, or elsewhere, as directed by competent authority.

6.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Court of Military Review and on 6 July 1983 the court affirmed the findings of guilty and the sentence.  

7.  Department of the Army, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 356, dated 15 September 1983, suspended the unexecuted portion of the approved sentence to confinement at hard labor for 1 year until 12 March 1984, unless sooner vacated, the suspended portion of the approved sentence would be remitted without further action.

8.  The dishonorable discharge was ordered to be executed on 8 November 1983.

9.  On 21 November 1983, he was dishonorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV as a result of court-martial.  He completed 2 years and 
26 days of total active service and he had 242 days of lost time due to being in confinement.





10.  He provided a self-authored statement in which he indicates, in effect, he was:

	a.  Accused of a crime he did not commit.  He was actually a witness to the crime that was committed by three perpetrators from a different unit.

	b.  A scared teenager alone in a different country, his father had just passed away, and he was unaware of the tactics used by prosecutors.

	c.  Convinced to plead guilty, told he would be able to go back to active duty at another post, used as an informant, and sent to the same place as the men who were busted.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  

   a.  Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

   b.  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.

   c.  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.

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 applicant's service record shows he received one Article 15 and he was convicted by a general court-martial of two specifications of armed robbery.  He also accrued 242 days of time lost time due to being in confinement. 

2.  Based on the available evidence 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 law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

3.  His service record is void of evidence which indicates he was coerced into pleading guilty to a crime, or that he was under duress, or pressured by his peers and others.  

4.  He contends, in effect, he witnessed the crime being perpetrated by three other Soldiers and that he did not participate in the crime.  However, this was an evidentiary issue that should have been raised at trial or during the appellate process.  

5.  Records show he was age 19 at the time of the offenses.  However, there is no evidence which indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

6.  His service record is void of evidence which indicates he was being considered for a medical discharge.  

7.  Based on the seriousness of the misconduct for which the applicant 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 the requested relief.

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)                                         AR20110022339



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ABCMR Record of Proceedings (cont)                                         AR20110022339



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