BOARD DATE: 11 October 2012 DOCKET NUMBER: AR20120006514 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 bad conduct discharge (BCD). 2. The applicant states, in effect, he had problems with his girlfriend and new baby joining him after he entered the Army. He was denied a hardship discharge which would have allowed him to join them at home; this resulted in him going absent without leave (AWOL) and ultimately the issuance of a BCD. 3. The applicant provides a self-authored letter in support of his request. 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 29 October 1979. He was trained in and awarded military occupational specialty 13B (Cannon Crewman) and he was never advanced above the grade of private/E-1 while serving on active duty. 3. The record shows the applicant earned the Marksman Marksmanship Qualification Badge with Rifle Bar and 1st Class Qualification Badge with Hand Grenade Bar during his active duty tenure. His record documents no acts of valor or significant achievement. The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated: a. on 20 March 1980, for leaving his post as a sentinel and being absent from his appointed place of duty without proper authority on 12 and 13 March 1980, respectively; and b. on 9 April 1980, for disobeying a lawful order, being disrespectful in language, and wrongfully communicating a threat to a noncommissioned officer on 4 April 1980, and for absenting himself from his place of duty without proper authority on 8 April 1980. 4. The applicant’s record is void of any documentation indicating he submitted a formal request for and/or was denied a hardship discharge while serving on active duty. 5. On 28 July 1980, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 24 May to 7 June 1980 and 19 to 29 June 1980; and of violating Article 134 of the UCMJ by escaping from correctional custody on 19 June 1980. The resulting sentence from the military judge was a forfeiture of $299.00 pay for 3 months, confinement at hard labor for 3 months, and a BCD. 6. On 15 September 1980, in Headquarters, Fort Carson and 4th Infantry Division (Mechanized) SPCM Order Number 114, the convening authority approved the sentence imposed by the military judge but suspended those portions in excess of a BCD, confinement at hard labor for 2 months, and a forfeiture of $299.00 pay for 2 months. 7. On 24 February 1981, the United States Army Court of Military Review affirmed only so much of the guilty finding of Charge II and its specifications that found the applicant breached restraint while undergoing the punishment of correctional custody. The remaining findings of guilty and the sentence were affirmed. 8. SPCM Order Number 200 issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, shows the sentence as affirmed through the appellate process was approved and the BCD portion of the sentence was ordered duly executed. 9. On 22 June 1981, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court-martial with a BCD. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 1 year, 5 months, and 13 days of creditable active service with 104 days of lost time due to being AWOL and in confinement. 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his BCD within that board’s 15 year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a BCD. It stipulates that a Soldier would be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 12. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to upgrade his BCD has been carefully considered. However, there is no evidence of record supporting the applicant’s assertion that he requested and was denied a hardship discharge during his active duty tenure. 2. By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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. The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge. 3. Further, the applicant’s record shows a disciplinary history that includes his acceptance of NJP on two separate occasions for multiple offenses prior to the SPCM conviction that resulted in his discharge. In addition, the evidence of record confirms the applicant’s SPCM processing was accomplished in accordance with applicable law and regulation including a review through the appellate process. 4. In view of the foregoing, based on the gravity of the offenses resulting in his SPCM conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his discharge. 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 that 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) AR20120006514 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120006514 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1