IN THE CASE OF:	  

		BOARD DATE:  20 June 2013

		DOCKET NUMBER:  AR20120021479 


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.

2.  The applicant states he is requesting an upgrade of his discharge in order to receive help and/or assistance with benefits.

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 enlisted in the Regular Army on 23 August 1989 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He was assigned to the 1st Battalion, 44th Air Defense Artillery, Fort Lewis, WA, on 23 February 1990.

3.  On 12 October 1990, he pled guilty to, and he was convicted by, a general court-martial of 23 specifications of wrongfully stealing and/or wrongfully appropriating a variety of items to include stereo components, a drill, a sander, and clothing of a value in excess of $3,700.00 between 23 February and 2 September 1990.

4.  He was sentenced to 6 years in confinement, a forfeiture of all pay and allowances, reduction to private (PVT)/E-1, and a dishonorable discharge.

5.  On 16 October 1990, the convening authority approved only so much of the sentence as provided for 4 years in confinement, a forfeiture of all pay and allowances, and reduction to PVT.  Two years of his sentence was suspended for 12 months to be remitted if not vacated and except for the dishonorable discharge, ordered it executed.

6.  On 16 January 1991, the U.S. Army Court of Military Review ruled on the applicant's appeal and found the applicant's assertion that his sentence was unjust and excessive to be without merit.  His sentence was amended to include a forfeiture of all pay and allowances while confined and $482.00 pay per month when not confined (until the dishonorable discharge was executed), and the sentence was affirmed.

7.  U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 23, dated 14 February 1992, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his dishonorable discharge executed.

8.  On 13 March 1992, he was discharged from the Army.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 3-10, with a dishonorable characterization of service.  He completed 1 year, 1 month, and 19 days of net active service with 513 days of lost time due to being in confinement.

9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.

10.  Army Regulation 635-200, 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.

11.  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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  Therefore, he is not entitled to 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)                                         AR20120021479



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021479



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1