IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002176 


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 his dishonorable discharge be upgraded.

2.  The applicant states:

* He served his time
* He has been a productive citizen since his release in 1990
* He is a family man and taxpayer
* He was jumped by three British Soldiers in 1989 and he defended himself 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 15 October 1985 for a period of 3 years.  He completed his training and was awarded military occupational specialty 52D (power generation equipment repairer).

3.  On 23 January 1987, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana. 

4.  On 15 April 1988, he was convicted by a general court-martial of committing aggravated assault and sleeping on post as a sentinel.  He was sentenced to confinement for 4 years, a forfeiture of all pay and allowances (FAPA), reduction to E-1, and a dishonorable discharge.  On 13 September 1988, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 3 years, FAPA, and reduction to E-1.

5.  On 17 March 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his petition for review on 29 June 1989.

6.  On 15 August 1989, the convening authority ordered the dishonorable discharge to be executed.

7.  On 15 September 1989, the applicant was dishonorably discharged as a result of court-martial under the provisions of chapter 3, Army Regulation
635-200 (Personnel Separations - Enlisted Personnel).  He had served a total of 2 years and 6 months of creditable active service with 519 days of lost time.

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

	a.  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.

	b.  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.


	c.  Paragraph 3-11 provides 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.

9.  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 contention that he was jumped by three British Soldiers in 1989 and he defended himself relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.  

2.  He contends he has been a productive citizen since his release in 1990.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  His record of service included one NJP for using marijuana, one general conviction for aggravated assault, and 519 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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.  The type of discharge directed and the reasons were therefore 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)                                         AR20120002176



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ABCMR Record of Proceedings (cont)                                         AR20120002176



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