ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20170004456


APPLICANT REQUESTS:  an upgrade of his dishonorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for The Review of Discharge From The Armed Forces of The United States)
* Self-Authored Letter
* Letter of Recommendation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states during his court-martial, there were extenuating and mitigating circumstances, surrounding the victim’s original statements, which could have exonerated him from the charges.  He states he was not drafted, but joined the Army and served proudly.  During the past five or ten years, he has been in school, until he had to sign out due to being homeless.  He has been free from any negative and breaking any laws.  The state has provided him a place to live and he is back in school.  He is a 4.0 student and a productive member of society. 

3.  The applicant provides a reference letter from X____, dated 30 January 2017, which states the applicant has worked for him in various capacities for the past twelve months.  He has done an excellent job in everything that was asked of him and has performed up to or has exceeded expectations.  He has great potential and he highly recommends his character, ambition, and determination.  The applicant’s background and training leads him to believe that he has an excellent future ahead of him.  He is a highly motivated person, and he is able to handle the most difficult and stressful situations with calm and enthusiastic deliberation.  The applicant is also an exemplary human being.  He has proven to be an eager, industrious, reliable, and intelligent person.  He is committed to each task assigned to him and demonstrated a desire to learn and develop.  He believes the applicant is a fine man with great talents and a wonderful future.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 10 October 1980.

	b.  He was convicted by a summary court-martial on 4 March 1982 for committing an unlawful assault, with a knife, on a Soldier.  His sentence included forfeiture of pay, and confinement to hard labor for fourteen days. 

	c.  On 7 March 1982,the convening authority examined and approved the findings and sentence and determined it correct in law and fact.

	d.  On 11 July 1982, he was convicted by a general court-martial of two specifications of stealing a pistol and a revolver, both property of the United States Government.  The court sentenced him to be confined at hard labor for four years, forfeiture of two-thirds pay per month for 48 months, reduction to private/E-1; and a dishonorable discharge. 

	e.  On 24 September 1982, the convening authority approved the sentence, and except for the dishonorable discharge ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

	f.  On 5 July 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

	g.  On 15 July 1983, the applicant was notified and advised of his right to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law within 60 days.  Record is void of any appeal.

	h.  On 17 November 1983, the convening authority ordered the sentence duly executed.

	i.  On 9 December 1983, the applicant was discharged in the rank/grade of private/E-1.  His DD Form 214 shows he was discharged as a result of court-martial conviction with a dishonorable characterization of service.  It also shows:

* he completed 1 year, 4 months, and 25 days of active service 
* he was awarded or authorized, Army Service Ribbon, Expert Rifle M16 Badge, and Hand Grenade Marksman Badge

5.  By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade request, the Board determined that relief was not warranted.  Based upon a pattern of serious criminal misconduct within the service record, the Board concluded that the characterization of service received at the time of discharge was appropriate.
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

XX	XX	XX:	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.

	 
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.




REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  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 (General discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 3-10 of that regulation provides that members will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.



ABCMR Record of Proceedings (cont)	 AR20170004456


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