BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140013512 


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 was told if he pleaded guilty he would receive a bad conduct discharge.

3.  The applicant provides:

* self-authored statement
* IRS Form 1099-MISC (Miscellaneous Income)
* two character references
* Penn Foster Email document and Transcript

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's record shows after having prior active military service he enlisted in the Regular Army on 26 March 1979.  He held and served in military occupational specialty 71L (Administrative Specialist).

3.  On 12 March 1980, a summary court martial (SCM) convicted the applicant of violating the following articles of the Uniform Code of Military Justice, for which he was sentenced to reduction to the lowest grade, hard labor without confinement for 30 days and 60 days restriction:

* Article 116, for participating in a breach of the peace on 16 January 1980
* Article 134, for breaking restriction on 15 January 1980
* Article 111, for operating a passenger car while drunk on 1 February 1980

4.  On 16 September 1980, pursuant to his pleas, a general court-martial (GCM) found the applicant guilty of the following charges, for which he was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for 3 years:

* Charge I (10 specifications) - wrongfully and unlawfully making certain checks for payment of money 10 times between 5 – 12 February 1980
* Charge II - wrongful appropriation of a vehicle valued at $400.00 
* Charge III - falsely making the signature of another Soldier to a certain check for the payment of money (forgery) on 29 May 1980
* Additional Charge I – forgery on 23 May 1980
* Additional Charge II – presenting a false claim on 30 June 1980

5.  On 8 December 1980, the convening authority approved the sentence, except that portion that pertained to dishonorable discharge, and ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 31 March 1981, the U.S. Army Court of Military Review found the findings of guilty correct in law and affirmed the sentence.

7.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 666, dated 1 October 1981, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed.

8.  The applicant was discharged from the Army on 23 October 1981.  The DD Form 214 issued for this period of service shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1, as a result of court-martial with issuance of a Dishonorable Discharge Certificate.  This document further shows he completed a total of 3 years, 10 months and 22 days of total active service with 435 days of time lost.

9.  The applicant provides two letters of support from individuals who comment on his upstanding character and support his request for a discharge upgrade.  He also provides a Penn Foster Transcript and an email from an instructor evidencing his enrollment in a Substance Abuse Counselor Program.

10.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides 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 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and 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.

11.  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 his dishonorable discharge should be upgraded.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms that pursuant to his pleas, the applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was issued a dishonorable discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  His service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to any discharge above the dishonorable discharge he received.

5.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore 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)                                         AR20140013512





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ABCMR Record of Proceedings (cont)                                         AR20140013512



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