BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140007143 


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 his discharge be upgraded.

2.  The applicant states, in effect, he was young and under a lot of stress at the time he committed the offense for which he was convicted.  He feels the punishment was too harsh for the crime he committed. 

3.  The applicant provides no additional evidence.

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 16 May 1980.  His records show he completed one station unit training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while on active duty was private first class/E-3.

3.  Available records indicate he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions:

* on 12 November 1980, for wrongful possession of marijuana
* on 30 June 1981, for wrongful possession of marijuana

4.  On 14 December 1981, he was found guilty in a general court-martial of one specification of willfully and wrongfully damaging property at a cost in excess of $100.00 by breaking windows and taillights; smashing the rear luggage carrier; and cutting a tire of a 1979 Porsche automobile.  He was sentenced to reduction to the rank/grade of private/E-1, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a dishonorable discharge.

5.  He appealed his conviction to the U.S. Army Court of Military Review and, on 17 November 1982, the findings and sentence were affirmed.  He appealed his case to the United States Court of Military Appeals.  While the record does not show the result of his appeal, on 6 January 1983, General Court-Martial Order Number 9, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, remitted the remaining unexecuted portion of the sentence of confinement at hard labor.  As a result, the applicant served 14 months of an    18-month sentence.  He was placed on excess leave effective 28 January 1983.

6.  On 28 March 1983, General Court-Martial Order Number 239, Headquarters United States Disciplinary Barracks, U.S. Army Combined Arms Center, directed the remaining portion of the applicant's sentence, the dishonorable discharge, be executed.  

7.  On 8 April 1983, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10, and he was given a dishonorable characterization of service.  The narrative reason for separation was listed as the result of a court-martial.  He completed 1 year, 8 months, and 25 days of active military service, with 424 days of lost time resulting from confinement.

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

	a.  Paragraph 3-7a provides that 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 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.

	c.  Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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 request for an upgrade of his discharge was carefully considered.  Although the sentence could be viewed as harsh, considering the crime, there is insufficient evidence to support his request.

2.  The transcript of the general court-martial is not available for review, but his contention should have been raised and conclusively adjudicated during the appellate process.  Additionally, he provides no evidence to support his request, or information regarding the events that led to his dishonorable discharge.

3.  The applicant was given a dishonorable discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and, apparently as a result of this review, a portion of the sentence was remitted.  It thus appears the court took into account any matters raised for consideration by the applicant.  The remainder of the sentence was affirmed and ordered duly executed.

4.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

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)                                         AR20140007143





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ABCMR Record of Proceedings (cont)                                         AR20140007143



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