IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130019992 


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 he maintained honorable service in the Oklahoma Army National Guard (OKARNG) and the Regular Army (RA) from 6 December 1976 until the incident that caused his court-martial.  A white officer accused him of improperly touching a teenage girl.  He approached him at his duty station.  This event caught him off guard.  He was not his immediate supervisor.  A rumor began about the event and the allegation.  This allegation led to his court-martial. If this event would have occurred today, he would have been afforded due process and given proper legal counsel.  He believes the race of the officer, his race, and the allegation played an important part in this injustice.  His white attorney encouraged him toward a plea deal due to race being a factor.  He took the advice of his attorney and based on his experiences within the Army and at Fort Polk on how black Soldiers and white Soldiers were treated, he took the plea deal.  He believes if this occurred today he would stand a better chance of the allegation being dismissed.  It is a different climate in the Army today than it was at Fort Polk, LA in the mid-1980's.

3.  The applicant provides no additional evidence in support of his application.

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.  He had previous service in the:

* RA - 6 December 1976 - 31 January 1980 - released from active duty, service characterized as honorable
* OKARNG - 18 March 1980 - 7 March 1981 - discharged, service characterized as honorable

3.  On 8 April 1981, he enlisted in the RA for 3 years.  He completed a 24-month tour of duty in Germany and on 6 September 1983, he was assigned to Headquarters and Headquarters Battery, Division Artillery at Fort Polk, LA.

4.  On 7 August 1984, he was tried before a general court-martial.  

	a.  He pled not guilty and was found not guilty of committing sodomy on divers occasions between 6 September 1983 and 11 May 1984 with a child, a female, under 16 years of age.

	b.  He pled guilty and was found guilty of committing a lewd and lascivious act upon the body of a female under 16 years of age.  The findings of guilty were based on the accused's plea of guilty.

	c.  His sentence consisted of:

* forfeiture of $400.00 per month for 4 years
* reduction to the grade of E-1
* confinement for 4 years at hard labor
* dishonorable discharge from the service

5.  A Report of Result of Trial, dated 7 August 1984, from the trial counsel to the Commanding General, 5th Infantry Division and Fort Polk, Fort Polk, LA reported the convening authority agreed to not approve that portion of the adjudged sentence which provided for confinement at hard labor in excess of 1 year and 
1 day.

6.  On 3 October 1984, the convening authority approved only so much of the sentence as provided for forfeiture of $400.00 pay per month for 4 years, reduction to the grade of E-1, confinement at hard labor for 1 year and 1 day, and dishonorable discharge from the service.

7.  On 19 February 1985 the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.

8.  On 7 June 1985, his dishonorable discharge was ordered executed and on 
24 June 1985 he was dishonorably discharged as a result of his court-martial conviction on 7 August 1984.  His net active service was 3 years, 5 months, and 7 days.  He had 277 days of time lost.

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

	a.  Chapter 3 provided that a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  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 have been clearly inappropriate.  

	c.  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.  

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 contends that race was a major factor in his being charged and that if the same event happened today he would be afforded due process and given proper legal counsel.  However, he has provided no substantive evidence to support his contention.  He was dishonorably discharged pursuant to an approved sentence of a general court-martial after the appellate review was completed and the sentence was affirmed.  There is no evidence that he was not afforded due process.

2.  His two previous periods of honorable service were noted.  However, they do not mitigate the very serious charge the applicant was convicted of at his general court-martial during his last enlistment.

3.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  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.  

5.  Based on the foregoing, there is an insufficient basis upon which to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20130019992





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ABCMR Record of Proceedings (cont)                                         AR20130019992



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