BOARD DATE: 1June 2017 DOCKET NUMBER: AR20160001187 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ __x______ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001187 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. BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001187 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 upgrade of his dishonorable discharge. 2. He states the upgrade is due to the fact that his intent was not deliberate, but was due to a lack of reasoning during a traumatic period of extreme stress beyond his control. He adds at the time he reacted, not acted. The acute trauma of his nasty divorce, financial burdens, and extreme losses were presented well by his counsel, which affected the outcome of the court-martial. He would like his record right in regards to the facts as they actually were, as opposed to how they were perceived. 3. He does not provide any 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 5 January 1977. He was honorably discharged on 5 July 1979 for immediate reenlistment which was accomplished the following day. 3. His record is void of any evidence that shows he was under undue stress and sought medical counseling or assistance to alleviate his stress. 4. General Court-Martial Order Number 60, published by Headquarters, 3d Infantry Division, dated 27 December 1988, shows he was found guilty on 4 November 1988 of the following offenses under Charge II, Article 108: * Specification 1, on or about 2 June 1988, without proper authority sell military property of the United States * Specification 2, or about 6 June 1988, without proper authority dispose of military property of the United States * Specification 3, or about 22 June 1988, without proper authority dispose of military property of the United States * Specification 4, or about 27 June 1988, without proper authority dispose of military property of the United States * Specification 5, or about 5 July 1988, without proper authority dispose of military property of the United States * Specification 6, or about 4 August 1988, without proper authority sell military property of the United States * Specification 7, or about 18 August 1988, without proper authority dispose of military property of the United States * Specification 8, or about 22 August 1988, without proper authority sell military property of the United States 5. The court sentenced him to confinement for 5 years, a reduction to pay grade E-1, a forfeiture of all pay and allowances, and to be discharged from the Army with a dishonorable discharge. The convening authority approved the sentence and except for the part of the sentence extending to a forfeiture of $71.00 pay per month for 5 years, and the dishonorable discharge, ordered it executed. 6. On 19 May 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 7. On 29 September 1989, the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial, other. He was given a dishonorable discharge. He was credited with completing 9 years, 1 month, and 26 days of net active service this period with time lost from 2 September 1988 to 10 July 1989 and 11 July 1989 to 29 September 1989 after normal expiration term of service. REFERENCES: 1. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. b. 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. c. 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. DISCUSSION: 1. The applicant's contention that his discharge should be upgraded because his intent was not deliberate and he was going through a period of extreme stress was considered. However, there is no evidence and he did not provide any to show that he sought medical and/or assistance to alleviate his stress. 2. The evidence of record shows he 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. 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. 3. He was given 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001187 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001187 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2