IN THE CASE OF:	

		BOARD DATE:	 3 June 2014 

		DOCKET NUMBER:  AR20130016400 


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 it has been almost 30 years since the incident and he's never gotten into trouble.  Instead, he has become a very productive citizen.  

3.  The applicant provides 21 separate enclosures to document his current life and his educational and vocational accomplishments.  

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 28 December 1977 the applicant enlisted in the Regular Army.  He completed training as a materiel storage and handling specialist.  He was stationed in Hawaii, was advanced to pay grade E-4, and reenlisted in June 1980.  He was transferred to Fort Story, Virginia where he received a letter of commendation for his duty performance.

3.  The applicant was then transferred to Germany in July 1982.  He received nonjudicial punishment (NJP) for two instances of absence from his place of duty.

4.  On 17 August 1984, a general court–martial found the applicant pled guilty to two specifications of violating a lawful general regulation by carrying a concealed weapon and possessing an unregistered weapon.  He pled not guilty to assault to commit murder but was found guilty of the lesser included charge of aggravated assault by intentionally inflicting grievous bodily harm.  He  was sentenced to forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 9 years, and a dishonorable discharge.  The convening authority approved the sentence and, except for the dishonorable discharge, ordered it executed.  

5.  In March 1985, while confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas the applicant applied to this Board for removal of the NJP, restoration to rank and pay grade, and a removal of a bar to reenlistment.  He based this request upon alleged possible mishandling of urinalysis testing.  His request was denied by the Board because there was no nexus between the NJP and any bar to reenlistment and any drug testing.   

6.  The Army Court of Military Review approved the findings but reduced the sentence to confinement to 6 years.  The United States Court of Military Appeals declined to consider the case.

7.  On 25 April, Article 71(c), Uniform Code of Military Justice having been complied with, the dishonorable discharge was ordered executed.  The applicant was separated with a dishonorable discharge on 23 May 1986.

8.  In support of this request the applicant submits copies of – 

* his 1980 Honorable Discharge Certificate from his reenlistment
* 1986 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Graduation from the International Dealers School, Las Vegas, Nevada, dated May 1990
* Certificate of Training by The Educational Society of Resource Management, dated August 1998
* Diploma Dahan Institute of Massage Studies, dated October 2001
* Transcript Dahan Institute of Massage Studies, dated October 2001
* Certificate of Training as a Customer Service representative, dated January 2003
* Baptism Certificate, dated May 2004
* laudatory incident report for customer service at a Budget Rental Car agency, dated , October 2006
* Transportation Safety Administration conditional appointment, dated February 2006
* Nevada Driver License, expired May 2013
* U.S. Department of Labor certificate of completion of 10 hours of construction health and safety, dated September 2008
* certificate of completion of safety training as a heavy equipment operator, dated August 2008
* Specified Technologies Incorporated, Firestop training certificate, undated 
* résumé listing employment commencing in May 1989
* State of Nevada Department of Motor Vehicles driving history
* résumé in a different format - indicating 12 years service as a storage and handling specialist
* transcript Everest University indicating completion of two business courses, dated July 2010
* Certificate of Completion, Las Vegas School of Insurance
* promotional flyers for two science fiction thriller novels listing the applicant as a co-author

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  

10.  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 drive to improve his education and employment standing is noted and noteworthy.  He has obviously applied himself to getting ahead.

2.  However, this does nothing to demonstrate that there was or is an injustice in the discharge.  

3.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

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)                                         AR20130016400





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016400



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1