RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060013231 


	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. Paul Wright

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann

Member

Mr. Gerald J. Purcell

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 an upgrade of his discharge.

2.  The applicant states he was "unfairly represented" at his court-martial and was ignorant as to the full impact of the consequences.  He adds, in effect, that since his discharge he has been a failure in life due to drug abuse and depression.

3.  The applicant provides 3 character reference letters and a personal statement, in which he explains the pressures he felt in going from "rags to riches" after entering the Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 May 1980.  The application submitted in this case was dated 
21 August 2004 (sic), but was received on 15 September 2006.

2.  On 25 January 1977, the applicant enlisted in the Regular Army for a period of 3 years.  He completed Basic Combat Training (BCT) and Advanced Individual Training (AIT).  Upon graduation, he was awarded military occupational specialty (MOS) 76D1O, Materiel Supply Specialist.

3.  On 11 April 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to go to company formation on 11 April 1977.  Punishment included forfeiture of $75.00 for 1 month (suspended for 30 days), and restriction and extra duty for 7 days.

4.  On 8 August 1977, the applicant accepted NJP for stealing money and merchandise of a value of $37.50 from the Post Exchange.  Punishment included forfeiture of $87.00 for 1 month (suspended for 30 days), and restriction and extra duty for 14 days.

5.  The applicant was assigned to South Korea from 8 September 1977 to 
15 August 1978.

6.  On 13 January 1978, the applicant accepted NJP for 3 specifications of failing to go to duty at the Motor Pool on 4, 5, and 6 January 1978.  Punishment included forfeiture of $100.00 for 1 month, and restriction and extra duty for 14 days. The applicant appealed and his appeal was denied on 20 January 1978.

7.  On 10 April 1978, the applicant accepted NJP for treating a noncommissioned officer with contempt on 29 March 1978, for being disrespectful to a noncommissioned officer on 29 March 1978, and for failing to go to duty at morning formation on 27 March 1978.  Punishment included reduction to pay grade E-1, and restriction and extra duty for 30 days.

8.  On 23 June 1978, the applicant pled not guilty at a special court-martial to 6 specifications of violating ration control regulations during the months of November and December 1977, and January 1978 by purchasing items in excess of his authorization.  He was sentenced to be discharged with a Bad Conduct Discharge and to be reduced to pay grade E-1.  On 1 September 1978, the convening authority approved the findings by excepting out selected portions of specifications 1, 4, and 5 and approving the sentence.  The applicant was ordered retained pending appellate review of his conviction.

9.  On 26 September 1978, the applicant accepted NJP for being absent without leave (AWOL) from 21 August to 25 September 1978.  Punishment included forfeiture of $175.00 for 2 months and correctional custody for 30 days.  The commander who imposed the punishment suspended the correctional custody on 28 September 1978.

10.  On 19 April 1979, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.

11.  On 28 April 1980, a supplemental special court-martial order was published indicating the sentence had been affirmed pursuant to Article 66.  It directed that the remaining portion of the sentence as to the Bad Conduct Discharge would be duly executed.

12.  On 22 May 1980, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, by reason as a result of court-martial.  He was credited with 3 years, 2 months, and 25 days of active Federal creditable service.  He had 35 days of lost time and 595 days of excess leave.

13.  A review of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active duty) Item 24 (Character of Service) shows that his discharge was erroneously characterized as “UNDER OTHER THAN HONORABLE CONDITIONS.”

14.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within that Board's 15-year statute of limitations.
15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  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.

18.  The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.  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 change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process 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 applicant's official record revealed serious misconduct resulting in conviction by a special court-martial.  The Board noted the applicant's contentions; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge.

3.  The Board is empowered to change the characterization of the discharge if clemency is determined to be appropriate.  Given the applicant’s DD Form 214 shows that he was discharged with an Under Other Than Honorable Conditions characterization of service, no further action will be taken on the applicant’s request.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __phm___  __gjp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060013231
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19800522
DISCHARGE AUTHORITY
AR 635-200, Chap 11
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.6800
2.

3.

4.

5.

6.