IN THE CASE OF:	  

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140006945 


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 to a general, under honorable conditions discharge.

2.  The applicant states he was young and stupid during the period of his military service.  It has been more than 30 years since his discharge and he has spent 
15 years in treatment for his alcoholism.  He now works in food service and is an associate of the United Veterans Group.  He adds that an upgrade of his discharge would be beneficial for both his career and future.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  The applicant enlisted in the Regular Army on 12 September 1979 for a period of 4 years.  At the time he was 20 years of age.  Upon completion of training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was advanced to private first class (PFC)/pay grade E-3 on
12 September 1980.

3.  Headquarters, U.S. Army Military District of Washington, Fort Lesley J. McNair, Washington, DC, Special Court-Martial Order Number 1, dated
19 January 1982, shows the applicant was tried by a special court-martial.

   a.  He was found guilty of –

* on 5 May 1981, wrongfully having in his possession 10 grams of marijuana
* on 5 May 1981, wrongfully transferring 10 gram of marijuana
* on 21 May 1981, committing an assault upon a female Soldier by fondling her and attempting to remove her clothing with intent to commit rape

	b.  He was sentenced to a bad conduct discharge, to forfeit $100.00 per month for four (4) months, to be reduced to the grade of private (E-1), and to be confined at hard labor for four (4) months.

   c.  On 19 January 1982, the Special Court-Martial Convening Authority approved the sentence, except for the bad conduct discharge which was suspended pending appellate review.

   d.  On 15 December 1982, the U.S. Army Court of Military Review reviewed the applicant's case and affirmed the findings of guilty and the sentence.

   e.  On 31 January 1983, the applicant petitioned the United States Court of Military Appeals.

   f.  Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, Special Court-Martial Order Number 49, dated
17 May 1983, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

4.  Headquarters, U.S. Army Military District of Washington, Fort Lesley J. McNair, Washington, DC, General Court-Martial Order Number 2, dated
9 August 1982, shows the applicant was tried by a general court-martial.

   a.  He was found guilty of, on 9 January 1982, committing an indecent assault upon a female Airman by grabbing her from behind, placing his arms over her nose and mouth, forcing her to the floor, laying on top of her, and moving his body in such a manner as to simulate sexual intercourse while verbally expressing his desires; said assault performed with intent to gratify his lust and sexual desires.

	b.  He was sentenced to a dishonorable discharge, to forfeit all pay and allowances, to be reduced to the grade of private (E-1), and to be confined at hard labor for 21 months.

   c.  On 9 August 1982, the General Court-Martial Convening Authority approved the sentence, except for the dishonorable discharge which was suspended pending appellate review.

   d.  On 28 January 1983, the U.S. Army Court of Military Review reviewed the applicant's case and affirmed the findings of guilty and the sentence.

   e.  On 17 February 1983, the applicant petitioned the United States Court of Military Appeals.

   f.  Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, General Court-Martial Order Number 376, dated 16 May 1983, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

5.  The applicant's DD Form 214 shows he was separated on 6 June 1983 with a dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, as a result of court-martial.  He was credited with 1 year, 8 months, and 27 days of net active service this period.  He had 728 days of time lost time due to confinement.

6.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable discharge.  It stipulates that a Soldier will be 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 before the sentence is ordered duly executed.

	b.  Chapter 3, 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.

7.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 his dishonorable discharge should be upgraded because he was immature and stupid; however, he has become a responsible person since he was discharged.

2.  The applicant successfully completed training, was awarded MOS 13B, and he attained the rank of PFC (E-3) within 12 months of active duty service, which demonstrates the capacity for honorable service.

3.  The applicant's trial by general 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 applicant's rights were protected throughout the court-martial process.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as the sole basis for changing or upgrading his 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)                                         AR20140006945



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ABCMR Record of Proceedings (cont)                                         AR20140006945



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