IN THE CASE OF: BOARD DATE: 19 May 2011 DOCKET NUMBER: AR20100026353 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 that his dishonorable discharge be upgraded to a general discharge. 2. The applicant states there is no error in his records, only justification for an upgrade of his discharge. He states he really cannot remember all of the details of what happened, but he was provoked into assaulting a fellow Soldier. He continues to state he is sorry and wants to get his life together by getting into a program administered by the Department of Veterans Affairs for alcoholics. He also states he has been homeless and lost his home and money due to alcohol. He further states he has had several head injuries due to alcohol-related falls and has been hospitalized for delirium tremens. Additionally, he states he served his country for 4 years and his alcohol problem began in the Army so he needs the Board's assistance to get back on his feet. 3. The applicant provides no additional evidence with his application. 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 in Chicago, Illinois, on 2 May 1978 for a period of 3 years and training as a Hercules crewman. He completed basic training at Fort Bliss, Texas, and remained at Fort Bliss for advanced individual training (AIT). He was disqualified from training as a Hercules crewman due to misconduct and was transferred to Fort Benning, Georgia, to undergo training as a light weapons infantryman. He completed AIT and was transferred to an infantry company in Wiesbaden, Germany. 3. On 21 February 1979, nonjudicial punishment was imposed against him for failure to go to his place of duty. 4. On 17 September 1979, he was convicted by a general court-martial of assault with intent to commit rape on 1 April 1979. He was sentenced to confinement at hard labor for 5 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. 5. On 7 January 1980, he was convicted by a general court-martial of two specifications of indecent assault on 10 September 1979. He was sentenced to confinement at hard labor for 3 years, total forfeiture of all pay and allowances, and a dishonorable discharge. 6. The applicant was transferred to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement. 7. On 31 December 1979 and 5 March 1980, the U.S. Army Court of Military Review affirmed the findings and sentences approved by the convening authority in both of his courts-martial. 8. On 18 June 1980, he was discharged pursuant to duly reviewed and affirmed court-martial convictions. He completed 1 year, 4 months, and 15 days of total active service and had 275 days of lost time due to imprisonment. 9. 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. Trial by courts-martial was warranted by the gravity of the offenses charged. The convictions and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case. 3. The applicant's contentions been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses. Accordingly, his service did not rise to the level of a discharge under honorable conditions. 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) AR20100026353 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100026353 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1