IN THE CASE OF:	  

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150002776 


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 discharge.

2.  The applicant states he was dishonorably discharged because he would not testify against his friend who had committed a crime.  He believes the Army should have issued him a general discharge under the circumstances.  He disagreed with the 3 June 1980 decision, but he just wanted to do his time in jail and move on with his life.  Now that he is older, he realizes that he should have fought to change his type of discharge.

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 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 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.  In all other respects, there are insufficient bases to waive the statute of limitations.
2.  The applicant's military records show he served in the Oklahoma Army National Guard from 8 May 1977 through on or about 8 November 1977.

3.  He enlisted in the Regular Army on 29 November 1977 and he held military occupational specialty 11B (infantryman).  He served in Germany from 1 February through 20 November 1978.  He was advanced to pay grade E-2 on 3 February 1978.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

* 28 August 1978 for failing to obey a lawful order issued by his superior noncommissioned officer (NCO); his punishment included a reduction to pay grade E-1, a forfeiture of pay, and 14 days of extra duty and restriction
* 13 November 1978 for  failing to obey a lawful order issued by his superior NCO; his punishment included a forfeiture of pay for 1 month and 45 days of extra duty and restriction

5.  On 14 February 1979, he was convicted by a general court-martial of one specification of attempted murder on 20 November 1978 and pushing an individual through the glass window of a telephone booth on 23 November 1978. He was sentenced to forfeiture of all pay and allowances, a dishonorable discharge, and confinement at hard labor for 7 years.

6.  On 9 April 1979, the convening authority approved the sentence, forwarded the record of trial to the Judge Advocate General of the Army for review by a Court of Military Review, and authorized his placement in confinement.

7.  On 24 October 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  On 9 January 1980, he applied to the U.S. Court of Military Appeals for a review of his conviction/sentence.  His record does not show the final outcome of his appeal.

9.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 205, dated 14 April 1980, shows that after completion of all required post-trial and appellate reviews, the convening authority affirmed the applicant's sentence and ordered it executed.

10.  He was discharged in pay grade E-1 on 3 June 1980, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) ), paragraph 11-1.  He was credited with completing 11 months and 21 days of net active service this period with 560 days of time lost.  His service was characterized as dishonorable.

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

   a.  Chapter 11 (Dishonorable and Bad Conduct Discharges), paragraph 11-1, a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed.

   b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition.  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 court-martial 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 was convicted by a general court-martial and was sentenced to a dishonorable discharge.  His discharge was affirmed and he was discharged accordingly on 3 June 1980.

2.  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 with due process with no violation of his rights.   

3.  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 evidence does not appear to support clemency 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)                                         AR20150002776





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002776



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1