RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 December 2005
DOCKET NUMBER: AR20050003287
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mr. Jessie B. Strickland | |Analyst |
The following members, a quorum, were present:
| |Ms. Shirley L. Powell | |Chairperson |
| |Mr. Melvin H. Meyer | |Member |
| |Mr. Allen L. Raub | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his bad conduct discharge (BCD) be upgraded
to honorable and that he be restored to the rank of sergeant first class
(SFC/E-7).
2. The applicant states, in effect, that his discharge should be upgraded
and his rank restored because he was never afforded the opportunity to face
his accuser. He also states that he has been a model and stable citizen
since his discharge.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which
occurred on 28 May 1986. The application submitted in this case is dated
14 November 2004 and was received on 2 March 2005.
2. 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so. In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3. He initially enlisted on 7 August 1974 and served until he was
honorably released from active duty on 27 October 1977.
4. He again enlisted in the Regular Army on 30 January 1979 and remained
on active duty through a series of continuous reenlistments. He was
promoted to the pay grade of E-6 on 21 October 1981, in military
occupational specialty 16R (Air Defense Artillery Short Range Gunnery
Crewman).
5. He completed the Drill Sergeant Course at Fort Sill, Oklahoma, on 11
August 1983 and was assigned to a basic training company at Fort Bliss,
Texas.
6. On 10 April 1984, he received a letter of reprimand from his brigade
commander for failure to conduct himself in a manner expected of a
noncommissioned officer and drill sergeant. He was transferred to another
company within the brigade.
7. On 6 December 1984, the applicant pleaded guilty to the charges against
him and was convicted by a special court-martial of dereliction of duty and
larceny of United States Government property. He was sentenced to
confinement for
30 days, a forfeiture of $300.00, and a BCD.
8. On 8 May 1985, the United States Army Court of Military Review affirmed
the findings and sentence approved by the convening authority.
9. On 10 March 1986, the United States Court of Military Appeals set aside
the finding of guilty as to charge I and its specifications and dismissed
charge I and its specifications. The Court affirmed the remaining finding
and the sentence.
10. On 14 May 1986, Special Court-Martial Order Number 18 was published at
Fort Bliss, which indicates that the findings of Guilty of charge I and its
specification (Dereliction of Duty) were dismissed and that the remaining
findings of guilty and the sentence had been finally affirmed. The order
directed that the BCD be duly executed.
11. Accordingly, the applicant was discharged with a BCD pursuant to a
duly reviewed and affirmed court-martial conviction on 28 May 1986. He had
served 10 years, 6 months, and 13 days of total active service and had 26
days of lost time due to confinement.
12. Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board 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. Trial by court-martial was warranted by the gravity of the offenses
charged. Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.
2. The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.
3. The applicant's contention has been noted and found to be without
merit. He was convicted at a trial by court-martial where he could face
his accusers and question witnesses. In addition, the applicant pleaded
guilty to the charges against him. Therefore, his contention that he was
not afforded the opportunity to face his accuser has no merit.
4. The applicant was also properly reduced to the pay grade of E-1
pursuant to a duly reviewed and affirmed sentence. Accordingly, there is
no basis to reinstate his former rank or any additional rank.
5. In order to justify correction of a military record, the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust. The applicant has failed to
submit evidence that would satisfy this requirement.
6. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 May 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 May 1989. However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__slp___ __mhm___ __alr___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's
failure to timely file this application within the 3-year statute of
limitations prescribed by law. Therefore, there is insufficient basis to
waive the statute of limitations for timely filing or for correction of the
records of the individual concerned.
Shirley L. Powell
______________________
CHAIRPERSON
INDEX
|CASE ID |AR20050003287 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051213 |
|TYPE OF DISCHARGE |(BCD) |
|DATE OF DISCHARGE |1986/05/28 |
|DISCHARGE AUTHORITY |SPCM . . . . . |
|DISCHARGE REASON |SPCM |
|BOARD DECISION |(DENY) |
|REVIEW AUTHORITY | |
|ISSUES |675/A68.00/BCD |
|1.144.6800 | |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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