RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060010146 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward Montgomery

Member

Ms. Rea M. Nuppenau

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.

2.  The applicant states, in effect, that he was young at the time and had marriage problems prior to his court-martial and that his BCD was too severe.  The applicant states that prior to his discharge he performed his duties well until he started having problems with his marriage that caused him to drink that resulted in him being court-martialed from the service.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 26 December 1990; an Army Achievement Medal certificate; three Certificates of Achievement; two Training Certificates; and two Letters of Appreciation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 December 1990.  The application submitted in this case is dated 10 July 2006.

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.  The applicant was born on 21 June 1967.  He enlisted in the Regular Army on 5 March 1985 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 31K (Combat Signaler).

4.  On 17 December 1987, the applicant was honorably separated from active duty after completing 2 years, 9 months, and 13 days of creditable active service with no time lost.  After a short period in the Texas Army National Guard the applicant enlisted in the Regular Army on 18 May 1988.  





5.  On 27 July 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 6 July 1988 through 12 July 1988.  His commander imposed a punishment consisting of a suspended reduction to Private First Class (PFC)/E-3, forfeiture of $210.00, 14 days restriction, and 14 days extra duty.

6.  On 27 January 1989, the applicant was convicted, in accordance with his pleas, by a general court-martial, of AWOL for the period 4 October 1988 through 10 November 1988 and for being drunk and disorderly.  He was acquitted of charges of larceny of a car and drunk driving.  His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of $466.00 per month for five months, confinement for five months, and a BCD.  On 15 February 1989, the convening authority approved the findings and sentence as adjudged.

7.  On 17 January 1990, the U.S. Army Court of Military Review (USACMR) approved only so much of the AWOL specification finding that the applicant was AWOL from 4 October 1988 through 13 October 1988.  The USACMR affirmed only that part of the sentence extending to a reduction to E-1, forfeiture of $466.00 per month for four months, confinement for four months, and a BCD.  On 16 August 1990, the U.S. Court of Military Appeals (USCMA) denied the applicant's petition.

8.  In taking final action on the case the convening authority, consistent with the USACMR opinion, only approved so much of the finding as to charge I as applied to the applicant's AWOL from 4 October 1988 to 13 October 1988.  The convening authority approved only so much of the sentence as applied to the BCD, confinement for four months, forfeiture of $466.00 per month for four months, and reduction to E-1. 

9.  On 26 December 1990, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.  He completed 2 years, 
3 months, and 2 days of creditable active service on his last enlistment with 125 days of lost time due to AWOL and confinement. 

10.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  


11.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the Army Board of Correction for Military Records may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service and age factor were considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that these factors are not sufficiently meritorious or mitigating to warrant the relief requested.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 December 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
25 December 1993.  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

__WFC__  __EM___  ___RMN_  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.




__     _William F. Crain     _
          CHAIRPERSON




INDEX

CASE ID
AR20060010146
SUFFIX

RECON

DATE BOARDED
8 MARCH 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.6800.0000
2.

3.

4.

5.

6.