IN THE CASE OF:	  

		BOARD DATE:  28 January 2014

		DOCKET NUMBER:  AR20130007637 


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, under honorable conditions discharge.

2.  He states he feels that the punishment he received should be taken into consideration.  He feels the discharge was harsh and he has paid for what he did.

3.  He provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 March 1984.  Upon completion of initial entry training, he was awarded military occupational specialty 31K (Combat Signaler).  The highest rank/pay grade he attained while serving on active duty was specialist/E-4.  However, at the time of his separation he held the rank/pay grade of private/E-1.

3.  The applicant's record contains numerous documents from his bank and creditors which show that both he and his command were notified on several occasions that he had rendered dishonored checks or failed to pay debts due to having insufficient funds in his checking account.

4.  On 17 October 1988, the applicant's commander initiated action for the imposition of a Bar to Reenlistment against the applicant due to a record of non-payment of just debts to his bank and several creditors.  The commander also noted the applicant's club charging privileges had been suspended and his military identification card was in the process of being over-stamped for the dishonored checks he had rendered.  The Bar to Reenlistment was approved on 26 October 1988 and the applicant elected not to appeal the bar on 31 October 1988.

5.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 16 February 1989, shows he accepted nonjudicial punishment (NJP) for violating Article 121 (Larceny), UCMJ by stealing a television and video cassette recorder from a unit on 13 December 1988 and a 750 watt 220/110 volt transformer from a post exchange store on 17 December 1988.

6.  General Court-Martial (GCM) Order Number 33, published by Headquarters, V Corps, shows the applicant was found guilty of:

	a.  Charge I, one specification of violating Article 121, UCMJ, by stealing a television and video cassette recorder from a unit on 13 December 1988.

	b.  Charge II, one specification of violating Article 80, UCMJ, by attempting to steal a 750 watt 220/110 volt transformer from a post exchange store on 
17 December 1988.

	c.  Charge III, one specification of violating Article 128, UCMJ, repeatedly striking a noncommissioned officer (NCO) of the U.S. Air Force.

	d.  Charge IV, one specification of violating Article 128, UCMJ, willfully and wrongfully damaging the privately owned vehicle of an NCO of the U.S. Air Force.
7.  The following sentence was adjudged on 30 June 1989:

* confinement for 27 months
* forfeiture of all pay and allowances
* dishonorable discharge

8.  On 28 August 1989, only so much of the sentence as provided for a dishonorable discharge, confinement for 16 months and forfeiture of all allowances and $420 pay per month for 16 months was approved and, except for the dishonorable discharge, ordered to be executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

9.  On 21 June 1990, a U.S. Army Court of Military Review noted that prior to his GCM, the applicant had been punished under the provisions of Article 15, UCMJ for two of the many offenses for which he was convicted by court-martial; specifically Charges I and II.  In his post-trial recommendation, the staff judge advocate (SJA) advised the convening authority that the applicant was entitled to credit for the prior NJP because double punishment is prohibited.  It had been previously determined in a court of law that an accused must not suffer actual punishment twice for an offense of which he is now convicted by court-martial and for which he had already received NJP.  Therefore, the applicant should be appropriately credited for pay previously remitted and time already served.  The findings of guilty were affirmed.  Only so much of the sentence was affirmed as provided for a dishonorable discharge, confinement for 16 months, and forfeiture of $420 pay per month for 16 months.

10.  On 26 July 1990, the applicant was placed on excess leave for an indefinite period awaiting the outcome of an appellate review of his punitive discharge.

11.  GCM Order 782, issued by Headquarters, U.S. Army Correctional Brigade, Fort Riley, KS, on 12 December 1990, shows the portion of the sentence extending to confinement had been served and the appropriate authority ordered the dishonorable discharge to be duly executed.

12.  His DD Form 214 shows he was discharged on 26 December 1990 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as the result of court-martial.  This form also shows his character of service as "Dishonorable."




13.  Army Regulation 635-200:

	a.  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.  Paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial.

	c.  Paragraph 3-10, provides 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.

14.  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's contentions are duly noted.  However, they are not sufficiently mitigating to absolve his misconduct during his period of service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.  The sentence he received for offenses that included theft and assault was not unduly harsh.

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 if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted 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 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)                                         AR20130007637





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ABCMR Record of Proceedings (cont)                                         AR20130007637



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