BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130016127 


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.

2.  The applicant states he has worked very hard to get his life in order.  He believes he has accomplished and established a law abiding, productive life style following some poor judgments based on his immaturity and fear of retaliation by those who actually committed the offense.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty) ending on              12 November 1977
* Six letters of support dated in 2012 and 2013
* A certificate for completion of the Substance Abuse Residential Rehabilitation Treatment Program from 19 February to 21 May 2013
* A certificate for completion of the Residential Substance Abuse Treatment, dated 21 May 2013

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.  In July 1977, the applicant enlisted in the U.S. Army Reserve (USAR).  He entered Active Duty Training (ADT) on 29 July 1977.  He was subsequently released from ADT on 12 November 1977.

3.  On 26 July 1978, the applicant enlisted in the Regular Army.  He completed training as a tactical wire operations specialist.

4.  In 1978 and 1979, the applicant completed a tour of duty in the Republic of Korea.

5.  In 1980, he was advanced to the rank/grade of specialist four SP4/E-4.

6.  On 2 November 1983, the applicant departed the United States for duty in the Federal Republic of Germany (FRG).  

7.  General Court-Martial Order Number 31, published by Headquarters, 8th Infantry Division, dated 27 August 1985 shows the applicant was convicted of violating Article 122 under the Uniform Code of Military Justice (UCMJ) for stealing, by means of force and violence, a wallet from a local national containing about 620 Deutsche Marks.  He was also convicted of violating Article 134 for the assault of another local national, with the intent to commit robbery.

8.  The applicant pled guilty and he was found guilty.  On 27 August 1985, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, 3 years confinement, forfeiture of all pay and allowances, and reduction to private, pay grade E-1; and, except for the part extending to a dishonorable discharge, ordered it to be executed.

9.  On 18 April 1986, the U.S. Army Court of Military Review considered the entire record of the applicant's conviction and issues brought to it by him.  The court held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and affirmed them as such.

10.  General Court-Martial Order Number 380, United States Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 
29 October 1986, announced the sentence had been affirmed.  Article 71(c) having been complied with and the sentence to confinement having been completed, that portion of the sentence pertaining to a dishonorable discharge was to be executed.

11.  The applicant's DD Form 214 shows that he was discharged on 
19 December 1986 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a dishonorable characterization of service.

12.  The six letters of support provided by the applicant's friends, co-workers, and substance abuse counselors essentially state that he has been a good worker and did an outstanding job while participating in the substance Abuse Residential and Rehabilitative treatment Program.

13.   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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  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 seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

3.  In view of the foregoing there is no 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)                                         AR20130016127



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ABCMR Record of Proceedings (cont)                                         AR20130016127



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