IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120013497 


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 to a general discharge.

2.  The applicant states he never caused trouble during his 17 years of service.  His spouse took items from the Post Exchange (PX) knowing she did not pay for them.  The PX accused her of returning some of the items without receipts.  He decided to take the blame for what his spouse did to allow her to remain free and care for their then two year old daughter.  He further states he did not know he was going to receive a dishonorable discharge and requests an upgrade of his discharge to show his children the value of service to his country and family.

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 enlisted in the Regular Army on 22 February 1974 and he held military occupational specialty 76Y (Unit Supply Specialist).  

3.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea and Germany, and he attained the rank/grade of sergeant (SGT)/E-5.  He was assigned to the 3rd Armored Division, Germany.

4.  On 23 March 1991, court-martial charges were preferred against him for the charges and specifications of wrongfully conspiring with his spouse to commit larceny of U.S. currency from the Army and Air Force Exchange Service and five specifications of larceny.  

5.  On 10 July 1991, contrary to his pleas, he was convicted by a general court-martial of the charges and specifications of conspiracy to commit larceny and five specifications of larceny.  The court sentenced him to confinement for two years, a reduction to private/E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

6.  On 7 July 1992, the U.S. Army Court of Military Review affirmed the finding of guilty.    

7.  The applicant was discharged from the Army on 20 April 1994.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a dishonorable discharge.  This document further shows he completed a total of 18 years, 9 months, and 2 days of net active service during this period.  He had lost time from 10 July 1991 to 6 December 1992.  

8.  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.

9.  Army Regulation 635-200 governs the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  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.  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.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general 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)                                         AR20120013497





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ABCMR Record of Proceedings (cont)                                         AR20120013497



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