BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160002615 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: 12 September 2017 DOCKET NUMBER: AR20160002615 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: 12 September 2017 DOCKET NUMBER: AR20160002615 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. He states he committed a crime while serving in the military and he served time for that offense. He served three years honorably in the Army prior to the incident and would like his discharge upgraded so he can utilize Department of Veterans Affairs (VA) Benefits. 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 15 September 1977. 3. On 24 July 1978, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a sergeant, a superior noncommissioned officer, on or about 17 July 1978. 4. General Court-Martial Order Number 37, published by Headquarters, 3d Infantry Division, dated 19 May 1980, shows he was convicted on 10 March 1980 of the following offenses: a. Charge II, Article 122. (1) Specification 1, on or about 11 May 1979, by means of force steal from a private first class (PFC)'s wall locker money of a value of $32.00, and (2) Specification 2, on or about 16 November 1979, by means of putting him in fear, steal from a private money of a value of $100.00. b. Charge III, Article 125. Specification, on or about 28 November 1979, commit sodomy with a private by force and without his consent. c. Charge IV, Article 127. Specification, on or about 17 May 1979, with the intent to unlawfully obtain $300.00, communicated a threat to PFC to shoot him right between (sic) the forehead d. Charge V, Article 128. (1) Specification 1, on or about 11 May 1979, assault a PFC by slapping him across the face with his open hand, and (2) Specification 2, on or about 16 November 1979, assault a private by striking him 4 or 5 times about the face with his fists. 5. The court sentenced him to confinement at hard labor for 8 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. 6. On 30 March 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 7. On 12 August 1981, the convening authority affirmed the sentence and ordered it executed. 8. On 3 September 1981, 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 11. He was given a dishonorable discharge. He was credited with completing 1 year, 7 months, and 19 days of net active service this period with time lost from 4 December 1979 to 14 September 1980 and 15 September 1980 to 3 September 1981 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. 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 he did his time and his discharge should be upgraded so he can utilize VA benefits was considered. However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' or other benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances warranting an upgrade. 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. Law prohibits any redress by this Board of the finality of a court-martial conviction. 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) AR20160002615 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002615 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2