RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060017608 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Jerome Pionk

Member

Ms. Jeanette McPherson

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, in effect, reconsideration of an earlier request to upgrade his bad conduct discharge.

2.  The applicant states that he would like a personal appearance before the Board.  He also states, in effect, that he had a troubled background and his family was dysfunctional.

3.  The applicant provides an undated statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060004275, on 16 November 2006.

2.  The applicant’s contentions are new arguments, which will be considered by the Board.

3.  The applicant enlisted on 8 August 1975 for a period of 3 years.  He trained as a unit clerk.   

4.  On 19 November 1976, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, restriction, and extra duty.

5.  On 16 March 1978, contrary to his pleas, the applicant was convicted by a special court-martial of two specifications of robbery, two specifications of extortion (communicating threats to kill with intent to obtain money), and communicating a threat to kill.  He was sentenced to be reduced to E-1, to be confined at hard labor for 5 months, to forfeit $225 pay per month for 6 months, and to be discharged with a bad conduct discharge.  On 13 April 1978, the convening authority approved the sentence. 

6.  On 17 October 1978, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 19 December 1978, the applicant petitioned the U.S. Court of Military Appeals.  On 16 March 1979, the applicant’s petition was denied.   
 
7.  On 19 March 1979, the bad conduct discharge was ordered executed.  

8.  Accordingly, the applicant was discharged with a bad conduct discharge on 25 May 1979 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served 3 years, 5 months, and 12 days of total active service with 133 days of lost time due to confinement.  His DD Form 214 (Report of Separation from Active Duty) shows his characterization of service was under other than honorable conditions.   

9.  On 19 February 1985, the Army Discharge Review Board denied the applicant’s request for upgrade to an honorable discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

11.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

12.  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.  

13.  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.

14.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR board members may grant a formal hearing whenever justice requires.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested a personal appearance before the Board, the governing regulation states that an applicant does not have a right to a hearing before the Board.  It does not appear that his case is so complicated that a formal hearing is required to make a fair and equitable decision in his case. 

2.  The applicant’s contentions relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in the sentencing phase of his court-martial proceedings.   

3.  Personal/family problems are not normally grounds for upgrading a discharge. There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.

4.  The applicant’s record of service included one nonjudicial punishment, one special court-martial conviction, and 133 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge is not warranted in this case, nor was his service sufficiently satisfactory to warrant a general discharge.

5.  It is noted that the U.S. Army mistakenly characterized the applicant’s service as “under other than honorable conditions” on his DD Form 214.  This error by the U.S. Army inadvertently upgraded his discharge from a punitive discharge to an administrative one, thereby granting the applicant a form of clemency. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JA______  _JP_____  _JM_____  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 to amend the decision of the ABCMR set forth in Docket Number AR20060004275, dated 16 November 2006.



__James Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20060017608
SUFFIX

RECON
20061116
DATE BOARDED
20070626
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19790525
DISCHARGE AUTHORITY
AR 635-200 Chapter 11
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.