IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130005981 


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 his discharge should be upgraded because it was unjust and he was intoxicated.  He served his country and should be honored the same as any other individual who has served.  

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 21 June 1966 for 4 years.  He completed advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He served in:

* Germany from 29 October 1966 through 6 January 1968
* Vietnam from 24 February 1968 through 18 February 1969

3.  On 23 July 1968, the applicant was convicted by a special court-martial of willfully disobeying a lawful order from his superior officer on 2 July 1968.  He was sentenced to a forfeiture of pay for three months.

4.  On 14 August 1969, he was convicted by a general court-martial of striking his superior commissioned officer in the nose with his fist.  He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for eighteen months, and a dishonorable discharge.

5.  On 29 October 1969, the convening authority approved the sentence.

6.  On 29 January 1970, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 

7.  There is no evidence he petitioned the U.S. Army Court of Military Appeals within the allotted timeframe.

8.  On 9 March 1970, the convening authority affirmed the sentence and ordered it duly executed.

9.  Accordingly, he was discharged in pay grade E-1 on 30 March 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 11-1b, as a result of a general court-martial, with a dishonorable discharge.  He was credited with completing 3 years, 1 month, and 23 days of net active service with 229 days of time lost.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 11-1b - an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the sentence affirmed before it could be duly executed.


   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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 change a court-martial 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 request for an upgrade of his dishonorable discharge was carefully considered.  However, the evidence of record shows the applicant was convicted by a general court-martial of unlawfully striking a superior commissioned officer.  He was discharged pursuant to the sentence of a general court-martial and was issued a dishonorable discharge after the findings and sentence were affirmed.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

2.  There is also no evidence that his treatment was unjust or inequitable.  He has provided no evidence or argument sufficient to show his discharge should be upgraded.  He was properly discharged and the discharge appropriately characterized the misconduct for which he was convicted.

3.  The Board is empowered to change the characterization of service and the narrative reason for discharge if clemency is determined to be appropriate.  The applicant's record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no basis for clemency.


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)                                         AR20130005981





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ABCMR Record of Proceedings (cont)                                         AR20130005981



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