IN THE CASE OF:  	  

		BOARD DATE:  16 October 2014	  

		DOCKET NUMBER:  AR20140004199 


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 served two terms of honorable service and received an honorable discharge prior to his dishonorable discharge.  When he returned to the United States from Germany it became difficult for him to transition and he began to abuse drugs.  Since then he has done everything necessary to move his life in the right direction.  His dishonorable discharge is the one remaining factor that has continued to stunt his growth as a productive member of society.  He apologizes for his mistakes.  He has greatly learned from them and would like to move on with his life.  He is currently a certified nursing assistant and would like to progress in his nursing career.

3.  The applicant provides copies of the following:

* DD Form 214 (Report of Separation from Active Duty) ending on 29 April 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 24 March 1988
* Nurse Aide Registry Document
* Certificate of Achievement
* Certification of Military Service
* Résumé



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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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.  

2.  The applicant enlisted in the Michigan Army National Guard (MIARNG) on 5 May 1978.  He completed training and was awarded military occupational specialty (MOS) 05C (radio teletype operator).  He was discharged from the MIARNG on 18 November 1979. 

3.  He enlisted in the Regular Army (RA) on 19 November 1979.  He was awarded MOS 94B (food service specialist).  He served in Germany from 30 January 1982 through 22 November 1985.  He was promoted to pay grade   E-5 on 5 September 1984.

4.  He was honorably discharged on 18 November 1984 for the purpose of immediate reenlistment.  He reenlisted in the RA on 19 November 1984.

5.  On 29 January 1987, he was convicted by a general court-martial of three specifications of larceny.  He was sentenced a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 18 months, and to be dishonorably discharged.

6.  On 5 March 1987, the convening authority approved the sentence and except for that part of the sentence extending to a dishonorable discharge would be executed; but the execution of those parts of the sentence adjudging confinement in excess of 15 months and total forfeiture of all pay and allowances in excess of 15 months were suspended for 6 months. 

7.  On 12 May 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 116, dated 10 March 1988, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed.

10.  Accordingly, he was discharged in pay grade E-1 on 24 March 1988, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, As a result of court-martial.  He was issued a dishonorable discharge.  He was credited with completing 2 years, 4 months, and 8 days of net active service this period; he also had lost time from 29 January 1987 through 21 January 1988.

11.  He provided copies of the following:

* Nurse Aide Registry Document, dated 16 March 2012, issued for his successful completion of an approved State of Michigan nurse aide training course
* Certificate of Achievement, dated 29 April 2013
* Certification of Military Service, dated 14 February 2014, issued by the National Personnel Records Center, for his period of RA service from 19 November 1979 through 18 November 1984, which shows he was honorably discharged in pay grade E-5
* Résumé he submitted for a position within a company for a Skilled Certified Nursing Assistant position

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-10 - a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor and entitles 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 be clearly inappropriate.



	c.  Paragraph 3-7b - 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.  

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 change a discharge due to matters which should have been raised in the appellate process, 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 was convicted by a general court-martial of three specifications of larceny and was sentenced to a dishonorable discharge.  His discharge was affirmed and he was discharged accordingly on 24 March 1988.

2.  He provided no evidence to show his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  His contentions and the documents he submitted were carefully considered; however, he has not provided sufficient evidence or argument to show his discharge should be upgrade to a general or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

3.  Without evidence to the contrary, trial by court-martial was warranted by the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20140004199



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ABCMR Record of Proceedings (cont)                                         AR20140004199



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