BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160004707 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: 24 October 2017 DOCKET NUMBER: AR20160004707 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: 24 October 2017 DOCKET NUMBER: AR20160004707 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 his dishonorable discharge be upgraded to an honorable discharge. 2. The applicant states he is requesting an upgrade because he has realized the importance of receiving an honorable discharge. He states he was offered the opportunity to remain in service after completing his confinement at Fort Leavenworth detention barracks. However, he declined due to a lack of understanding how the type of discharge would affect his life. The dishonorable discharge has impacted his life negatively and he hasn't been in trouble with law enforcement or incarcerated. He has learned from his mistake and has changed his life for the better. 3. The applicant provides: * Four character reference letters * DD Form 214 (Certificate of Release or Discharge from Active Duty) * General Court-Martial Order Number 6, dated 3 July 1979 * General Court-Martial Order Number 752, dated 12 November 1980 * Order 60-2, dated 27 March 1980 * Order 38-4, dated 25 February 1981 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. On 26 May 1977 the applicant enlisted in the Regular Army. He held military occupational specialty 94B (Food Service Specialist). Following initial training he was assigned to the Republic of Korea. He arrived on or about 27 October 1977. 3. While in Korea, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 6 September 1978, unlawfully striking a Soldier on the face with his fist and unlawfully striking a second Soldier on the chin * 17 October 1978, exceeding his ration card purchase authorization 4. On 2 November 1978, he was reassigned to Fort Hood, TX. While there, on 21 November 1978, he again received NJP under the UCMJ for being disrespectful in language and attempting to enter the enlisted women billets. 5. On 6 June 1979, he was arraigned at a general court-martial convened by the Commander, Headquarters, 1st Cavalry Division, Fort Hood, TX, and was tried for violating the UCMJ. The court found him guilty of the charge and one specification of committing an assault upon a Soldier by cutting him on the throat with a knife and thereby intentionally inflicting grievous bodily harm. 6. The court sentenced him to reduction to the lowest enlisted grade of E-1, hard labor for 5 years, forfeiture of all pay and allowances, and upon completion of confinement, separation from service with a dishonorable discharge. 7. On 3 July 1979, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 22 months, and total forfeiture of pay and, except for the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 8. The applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, from 28 June 1979 to 4 April 1980, and upon release from confinement, he was placed in an indefinite excess leave status pending appellate review. 9. On 7 January 1980, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 10. General Court-Martial Number 752, issued by the U.S. Disciplinary Barracks, on 12 November 1980 shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed. 11. The applicant was discharged on 25 February 1981. His DD Form 214 shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a dishonorable discharge. This form further shows he completed 1 year, 10 months and 25 days of active creditable service with lost time from 21 April 1979 to 25 May 1980 and with time lost after normal expiration-term of service 26 May 1980 to 25 February 1981. 12. The applicant provided four character reference letters from acquaintances and friends who describe him as a man of loyalty, compassion, caring, respectable, and of integrity. He is also described as an inspiration to youth in the local community and a great family man. 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, in effect at the time, governs the separation of enlisted personnel. a. An honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. b. 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. An undesirable discharge is an administrative separation from the service under conditions other than honorable. d. Paragraph 11-1 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. e. Paragraph 11-2 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. DISCUSSION: 1. The applicant was convicted by a general court-martial, which was warranted by the gravity of the offense charged at the time. He committed an assault by cutting a Soldier on the throat with a knife, thereby intentionally inflicting grievous bodily harm. The conviction and discharge were effected in accordance with applicable laws and regulations. 2. The 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2