RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20070014496 


	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.



	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, an upgrade of his Bad Conduct Discharge (BCD).  

2.  The applicant states, in effect, he was instructed not to go through a General Court-Martial (GCM) and to instead accept a speedy BCD trial.  He claims he did not know what this process meant and believed he would be allowed to finish his time.  He states he only had 10 days left in the Army and was generally a good Soldier.  

3.  The applicant provides no additional documentary evidence in support of the application.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 9 August 1979.  His Personnel Qualification Record 
(DA Form 2-1) shows he was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout), that he was promoted to specialist four on 21 September 1981, and this was the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class (PFC) on
19 August 1982, to private/E-2 (PV2) on 28 January 1983, and to private/E-1 (PV1) on 14 November 1983. 

3.  Item 41 (Awards and Decorations) shows that he earned the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with 
Machinegun and Grenade Bars during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record documents a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  21 August 1980, for two specifications of wrongfully using provoking words toward and two specification of wrongfully threatening a superior Noncommissioned Officer (NCO); 24 June 1982, for failing to go to his appointed place of duty at the prescribed time; 19 August 1982, for two specifications of failing to go to his appointed place of duty at the prescribed time; and 28 June 1983, for three specifications of failing to go to his appointed place of duty at the prescribed time.

5.  On 14 November 1983, a Special Court-Martial (SPCM) found the applicant guilty, pursuant to his plea, of two specifications of violating Article 86 of the UCMJ by being absent without leave (AWOL) from on or about 16 through 
18 May 1983, and from on or about 23 May through on or about 10 October 1983.  The resulting approved sentence was a reduction to PV1, forfeiture of $382.00 a month for four months, confinement at hard labor for four months, and a BCD.  

6.  On 14 June 1984, SPCM Order Number 83, issued by Headquarters, 
7th Infantry Division and Fort Ord, Fort Ord, California, directed that, the provisions of Article 71(c) of the UCMJ having been complied with, the BCD portion of the applicant’s approved sentence would be duly executed.  On 16 July 1984, the applicant was discharged accordingly.

7.  The separation document (DD Form 214) issued to the applicant on 16 July 1984, shows that he completed a total of 4 years, 3 months, and 8 days of creditable active military service, and that he accrued 240 days of time lost due to AWOL and confinement.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a GCM or SPCM, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

9.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he did not understand the process he went through, and that he was generally a good Soldier were carefully considered.  However, there is insufficient evidence to support these claims.

2.  By law, any redress by this Board of the finality of a court-martial conviction, after 1949 under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on four separate occasions prior to the SPCM conviction that led to his discharge.  Therefore, given his extensive record of misconduct, his undistinguished service record, and the severity of the offenses for which he was convicted, there is an insufficient evidentiary basis to support clemency in this case.  

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x__  __x__  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 for correction of the records of the individual concerned.




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR20070014496
SUFFIX

RECON

DATE BOARDED
2008/02/
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
1984/07/16
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON
C-M 
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  189
110.0000
2.

3.

4.

5.

6.