BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120003887 


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 discharge.

2.  The applicant states his dismissal from the Army under other than honorable conditions was too harsh.

3.  The applicant provides no additional 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's records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 15 August 1984.  He entered active duty on 16 October 1984.

3.  On 21 April 1985, he was apprehended or arrested at Fort Hood, TX, for a drunken driving offense.  His installation driving privileges were suspended for 1 year.

4.  On 23 June 1986, he was convicted consistent with his pleas by a general court-martial at Fort Hood, TX, of the following articles of the Uniform Code of Military Justice (UCMJ):

* Charge I, Article 121, one specification of larceny ($2,252.24 worth of property)
* Charge II, Article 132, one specification of fraud 
* Charge III, Article 133, one specification of conduct unbecoming an officer
* Charge IV, Article 123a, 11 specifications of making and uttering worthless checks
* Charge V, Article 107, one specification of making a false official statement
* Charge VI, Article 134, one specification of false swearing on an affidavit
* Charge VII, Article 92, one specification of violating a general regulation
* additional Charge I, Article 123a, four specifications of making and uttering worthless checks on divers occasions
* additional Charge II, Article 123a, four specifications of making and uttering worthless checks 

5.  The court sentenced him to forfeiture of all pay and allowances, confinement at hard labor for 1 year, and dismissal from the service.  The convening authority approved the sentence on 8 September 1986.

6.  On 16 December 1986, the Commander, U.S. Army Combined Arms Center and Fort Leavenworth, requested authority for the applicant's release from active duty as a result of a general court-martial prior to his U.S. Disciplinary Barracks release date of 12 January 1987.

7.  The U.S. Army Court of Military Review affirmed the findings and the sentence.

8.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review.

9.  On 18 November 1987, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved and ordered executed the sentence of dismissal.

10.  Headquarters, Department of the Army, Washington, DC, General Court-Martial Order Number 48, dated 18 November 1987, shows that after completion of all required post-trial and appellate reviews, the Chief of Staff of the Army directed that the applicant "ceases to be a member of the U.S. Army at midnight on 9 December 1987" by order of the Secretary of the Army.

11.  On 30 March 1988, a DD Form 214 (Certificate of Release or Discharge from Active Duty) was administratively prepared and shows the applicant was dismissed from active duty on 12 January 1987.  He received an under other than honorable conditions character of service.  He completed 1 year, 8 months, and 3 days of creditable active service with lost time from 23 June 1986 to 12 January 1987.

12.  Article 74 of the UCMJ allows the Secretary and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer to remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence prescribed by the President.  It also allows the Secretary concerned to, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

13.  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.

14.  Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time, provided the authority for the separation of commissioned and warrant officers from the active Army.

	a.  Paragraph 1-5a stated a commissioned or warrant officer would normally be furnished an Honorable Discharge Certificate unless conditions existed as indicated in paragraphs 1-5b and 1-5c, or as directed by the Secretary of the Army.

	b.  Paragraph 1-5b stated a general discharge under honorable conditions was applicable in cases of unqualified resignation in circumstances involving serious misconduct; discharge because of serious misconduct, including misconduct for which punishment has been imposed, which renders the officer unsuitable for further service; discharge for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; and discharge under the Military Personnel Security Program if directed by Headquarters, Department of the Army.

	c.  Paragraph 1-5c stated a dishonorable discharge was applicable to warrant officers only and as a result of a sentence by a court-martial.

15.  The Manual of Courts-Martial provides for maximum punishments for each article of the UCMJ.  For example, the maximum punishment of violation of Article 121 – larceny of military property of a value of more than $500.00 – is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of various offenses. He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and dismissal from the service.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence and he did not petition the U.S. Court of Appeals for the Armed Forces.

2.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and dismissal were effected in accordance with applicable law and regulations and the dismissal appropriately characterized the misconduct for which he was convicted.

3.  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 or dismissal if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any sufficiently mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  Contrary to his argument that the punishment was too harsh, given the charges and the maximum punishment authorized for each charge or specification, it appears the court considered his inexperience and sentenced him to a lesser sentence.  He knew his actions could negatively impact his military career.

5.  His sentence was appropriate given the gravity of the offenses for which he was convicted.  As a result, there is an insufficient evidentiary basis to support clemency 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 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)                                         AR20120003887



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ABCMR Record of Proceedings (cont)                                         AR20120003887



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