RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060013513 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann Jr.

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 that his bad conduct discharge be upgraded.

2.  The applicant states, in effect, that he would like for his discharge to be upgraded because of health reasons only.  He states he is unable to take care of his family and he is a veteran that needs health benefits.

3. The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 July 1980.  The application submitted in this case is dated 5 September 2006.

2.  The applicant’s records show he enlisted in the Regular Army and entered active duty on 1 November 1974.  He attended basic combat training and advanced individual training and was awarded the military occupational specialty 12C1O (Bridge Crewman).  The highest grade held was sergeant/pay grade E-5.

3.  On 1 November 1978, the applicant accepted non-judicial punishment for being absent without leave (AWOL) on 18 October 1978.

4.  On 27 January 1980, the applicant received a Bar to Reenlistment from his commander for conduct unsuitable for continued service in the Army.

5.  On 11 March 1980, the applicant pled guilty before a military judge sitting alone at a special court-martial of five specifications of AWOL for the periods 
2-4 October 1979; 16-18 October 1979; 5-13 November 1979; 26-30 November 1979; and 30 November 1979 to 26 January 1980.  On 3 April 1980, he was sentenced to reduction to private pay/grade E-1 and a bad conduct discharge.

6.  On 3 May 1980, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.

7.  On 8 July 1980, the applicant's bad conduct discharge was ordered to be executed.

8.  On 16 July 1980, the applicant was discharged as a result of a court-martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he completed a total of 5 years, 4 months, and 10 days of active service.  He also had a total of 126 days time lost.
9.  The applicant applied to the Army Discharge Review Board (ADRB) on 
19 October 1982.  On 23 March 1983, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable; therefore, his request for an upgrade to his discharge was denied.

10.  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.  It 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.

11.  Court-martial convictions stand as adjudged or as 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 (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 claim that he would like for his discharge to be upgraded because of health reasons and because he is a veteran was carefully considered.  However, these reasons are not considered sufficiently mitigating to warrant the requested relief.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  Any relief by this Board regarding the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The applicant's entire record of service was carefully considered.  However, given the seriousness of the offenses for which he was convicted, it was not considered to be sufficient to warrant clemency in this case.  As such, there is no basis upon which to support the applicant's request to upgrade his bad conduct discharge.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement or to show clemency is warranted.

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
A20060013513
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.