IN THE CASE OF:	  

		BOARD DATE:	 4 December 2012 

		DOCKET NUMBER:  AR20120009649 


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 to a general under honorable conditions discharge.

2.  He states:

	a.  he wasn't able to adapt to military life so he asked to be discharged.

	b.  he was young and was misled by older people who didn't have his best interest in mind.

	c.  he was told this action would get him out of the U.S. Army.

	d.  he gave information concerning why he committed the actions.  No one was punished except him and the ones who led the actions, who were never brought forward.  

   e.  he wasn't given a fair hearing concerning his actions and what he was trying to do.

3.  He provides the results of his disciplinary/administrative action and DA Form 2800 (U.S. Army Criminal Investigation Command (CID) Report of Investigation).



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 January 1963 and he enlisted in the Regular Army on 12 August 1980 at 17 years of age.  He served in Germany from 6 February 1981 to 9 September 1982.

3.  On 21 June 1982, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for two specifications of larceny and two specifications of forgery.

4.  He provided a document which indicates that on 21 June 1982 he was administered judicial punishment under Article 15.

5.  He was barred from reenlistment on 21 June 1982.  

6.  He provided a copy of a CID Report, dated 5 August 1982, which indicates he was investigated for larceny and forgery.  

7.  On 10 November 1982, he was convicted by a general court-martial of two specifications of larceny and two specifications of forgery.  He was sentenced to a dishonorable discharge, confinement at hard labor for three years, and forfeiture of all pay and allowances.

8.  On 27 January 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

9.  On 8 April 1983, the Commandant, U.S. Disciplinary Barracks, KS directed that $275.00 pay per month of the applicant's sentence to forfeiture of all pay and allowances be suspended.

10.  On 31 May 1983, the dishonorable discharge was ordered to be executed.
11.  He was discharged on 22 June 1983 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 3-10, as a result of court-martial with issuance of a dishonorable discharge.  He completed 2 years and 28 days of creditable active service with approximately 286 days of lost time.

12.  References:

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

		(1)  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 of this regulation 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.

		(2)  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.  

	b.  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 contends he wasn't able to adapt to military life so he asked to be discharged.  However, his service record shows he was convicted by a general court-martial of two specifications of larceny and two specifications of forgery.  As a result, he was sentenced to be discharged with a dishonorable discharge.

2.  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 laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  Records show the applicant was 19 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  His service record is void of evidence which indicates he was misled by older people.  

4.  His service record is void of evidence and he has not provided any evidence which supports his contention that he wasn't given a fair hearing.  

5.  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)                                         AR20120009649





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ABCMR Record of Proceedings (cont)                                         AR20120009649



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