BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20130010528 


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 an honorable discharge.

2.  The applicant states his conviction was for "strong armed robbery."  He did not rob anyone or steal anything from anyone.  Once the evidence is reviewed it will show that a mistake was made and he was wrongfully charged.  He recognizes he made some mistakes in his youth.  He was wrong for his involvement in a dispute with another Soldier dealing with a friend of his.

3.  The applicant provides:

* a self-authored letter, dated 4 January 2012
* a letter from his brother, dated 4 January 2012
* a letter from an attorney, dated 6 January 2012

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.  On 4 January 1974, he enlisted in the Regular Army.  On 9 October 1974, he was assigned to the 1st Battalion, 3rd Air Defense Artillery at Fort Campbell, KY.

3.  On 11 February 1975, contrary to his plea, he was found guilty by a general court-martial of stealing from a private, by means of force and violence and against his will, United States currency of a value of $220.00.

4.  His sentence consisted of:

* forfeiture of all pay and allowances
* confinement at hard labor for 2 years
* discharge from the Army with a dishonorable discharge

5.  On 24 March 1975, the convening authority approved the sentence.

6.  General Court-Martial Order Number 1111, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 5 November 1975, ordered to apply to pay and allowances becoming due on and after 24 March 1975 as was in excess of forfeiture of $160.00 pay per month for each month thereafter was suspended until such time as the sentence was ordered executed, at which time, unless sooner vacated, the suspended portion was to be remitted without further action.

7.  General Court-Martial Order Number 32, issued by the same headquarters, dated 12 January 1976, stated that the provisions of Article 71(c) having been complied with, the findings of guilty and the sentence as modified were affirmed and ordered the applicant's dishonorable discharge executed.

8.  On 11 February 1976, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1, as a result of a court-martial with a dishonorable discharge.  He completed 11 months and 7 days of total active service with 421 days of time lost due to confinement.

9.  The applicant's brother provided a letter of support, dated 4 January 2012, wherein he stated the applicant wanted to help the family by joining the military.  

During his course of enlistment the applicant got into some trouble and he ended up being dishonorably discharged.  His brother has struggled with headaches and body pain and wrestled with disappointments, rejection, and denials due to his dishonorable discharge that happened over 38 years ago.  He has since joined Bell Memorial Baptist Church and become a hardworking and dedicated trustee.

10.  He provided a letter from his attorney, dated 6 January 2012.  He stated he did not have any of the applicant's service records.  He stated the applicant was charged with strong armed robbery and served 18 months at Fort Leavenworth, KS.  The applicant now contends he should have been charged with assault.  He has made no prior effort to set aside his conviction or to have the sentence reduced.  The applicant is homeless and unemployed at present but has made applications for employment as a truck driver.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 stated a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and the appellate review must have been completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.    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.

12.  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 trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  His contentions could have been/should have been raised and finally adjudicated in the appellate process.

2.  The statements made concerning his post-service achievements and conduct are noted.  However, good post-service conduct and the passage of time are not sufficiently mitigating to upgrade a properly-issued discharge.  Given the seriousness of the offense for which he was convicted, the applicant's post-service conduct is not considered sufficiently mitigating to warrant an upgrade of his discharge.

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.

4.  Based on the foregoing, there is insufficient evidentiary basis for granting the applicant an honorable or 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)                                         AR20130010528



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ABCMR Record of Proceedings (cont)                                         AR20130010528



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