BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003203 


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 general under honorable conditions.

2.  The applicant states the discharge he received is correct.  He requests an upgrade of his dishonorable discharge to general under honorable conditions due to his status in society and his belief and knowledge that his past is behind him.

3.  In an accompanying DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), he states:

* he was young and not thinking of the effects of his decision
* he regrets his decision and realizes he should have told his command about what was taking place before the incident
* he has paid for the consequences of his actions
* his past is behind him and he has been a model citizen since discharge
* he works in the court system and with attorneys daily and he is highly regarded in his work
* he desires to reenter the military and fulfill the obligation he set out to do
* he desires to be a role model to new Soldiers to ensure a better transition than his

4.  The applicant provides a DD Form 293.


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 30 June 1998.

3.  Headquarters, Fort Carson, General Court-Martial Order Number 23, dated 18 June 2001, shows:

	a.  He was tried and found guilty of:

		(1)  conspiracy to commit robbery between about 1 December 2000 and 14 December 2000 and

		(2)  robbery of approximately $400.00, the property of L____ L____, by means of force and violence and putting individuals in fear with a firearm on or about 14 December 2000.

	b.  He was sentenced to reduction in rank/grade from private/E-2 to private/
E-1, forfeiture of all pay and allowances, confinement for 54 months, and a dishonorable discharge.

4.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 182, dated 6 March 2003, shows his sentence was affirmed and ordered the execution of his dishonorable discharge.

5.  On 16 July 2003, he was discharged accordingly.  His DD Form 214 shows he completed 2 years, 8 months, and 19 days of creditable active military service and he had lost time during the period 30 March 2001 through 15 July 2003.

6.  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.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  He was sentenced to a dishonorable discharge by a court-martial, the appellate review was completed, and the affirmed sentence was ordered duly executed.

2.  The applicant has not submitted evidence to show that his dishonorable discharge is unjust.  There is no error or injustice apparent in his records.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to general.  He was properly discharged under the provisions of Army Regulation 635-200 with due process and with no violation of his rights.

3.  Any redress by ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Notwithstanding the applicant's record of service up until the time of his offenses, the serious nature of his offense and the type of discharge directed were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing evidence, there is no basis for 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 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)                                         AR20150003203



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ABCMR Record of Proceedings (cont)                                         AR20150003203



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