IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150006562 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, in effect, an upgrade of his dishonorable discharge to honorable. 2. The applicant states, in effect, he wants his character of service changed to honorable. 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 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 was inducted into the Army of the United States on 18 March 1970. 3. On 10 August 1971, he appeared before a general court-martial assembled at Camp Eagle, Republic of Vietnam, where: a. he was charged with attempting to commit murder on First Sergeant  N____ L. P____ by detonating a fragmentation grenade by his sleeping quarters on 28 May 1971 b. he was charged committing an assault upon Specialist Four  F____ S. B____ with intent to commit murder by wounding him with a fragmentation grenade. 4. Headquarters, 101st Airborne Division, General Court-Martial Order Number 15, dated 5 February 1972, shows the court found him guilty of all charges and sentenced him to be dishonorably discharged from the Army, to forfeit all pay and allowances, to be confined at hard labor for 20 years, and to be reduced to the rank/grade of private (PV1)/E-1. The convening authority approved his sentence and forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review. 5. Headquarters, U.S. Disciplinary Barracks, General Court-Martial Order Number 398, dated 7 May 1973, shows the sentence promulgated in Headquarters, 101st Airborne Division, General Court-Martial Order Number 15, dated 5 February 1972, was affirmed and the sentence would be duly executed. 6. Headquarters, U.S. Disciplinary Barracks, Special Orders Number 110, dated 6 June 1975, show the applicant was released from confinement on 10 June 1975 due to sentenced parole and given an effective date of discharge of 21 May 1973. 7. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged effective 21 May 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial with his service characterized as dishonorable. He completed a total of 1 year, 5 months, and 29 days oftotal active service with 183 days of lost time from 17 March 1971 through 17 March 1972 and 430 days of lost time subsequent to his normal expiration term of service from 18 March 1972 through 21 May 1973. 8. 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. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. 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. c. Paragraph 3-10 provides that an enlisted person will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his dishonorable discharge was carefully considered. 2. He was given a dishonorable discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offenses with which he was charged. His conviction of attempted murder and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. 3. The applicant's discharge proceedings were conducted in accordance with law and regulations in effect at the time. The characterization of the applicant's discharge was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time. 4. All requirements of law and regulation were met and his rights were fully protected. 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. 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) AR20150006562 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006562 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1