RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	    29 April 2008
	DOCKET NUMBER:  AR20070017065 


	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.


 

Director

 

Analyst
      The following members, a quorum, were present:


  

Chairperson

 

Member

 

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, that his Bad Conduct Discharge (BCD) be upgraded and the narrative reason for separation be changed to hardship. 

2.  The applicant states that just prior to his induction his mother passed away.  He thought that joining the Army would help with his grief.  While in training he was notified that his grandmother had passed away.  While home on emergency leave he was notified that his uncle was hospitalized and died.  Things improved for him for a while and he completed training.  However, he soon learned that the living accommodations for his brothers and sisters were not adequate.  He asked for additional leave but his sergeant major denied the request.  The applicant approached his colonel with the leave request and received the requested time.  He requested a compassionate reassignment but only received a temporary reassignment.  Upon return to his regular duty station his stress over his family began to affect his work.  He spoke with the chaplain and put in for a discharge.  Things got worse and he made the mistake of stealing a stereo from a fellow Soldier to get back at him.  He gave the stereo to a friend and was arrested when he went to retrieve it.  After receiving a dressing down from his sergeant, he got scared that he would be punished and not be allowed to see his family so he went absent without leave (AWOL).  After talking to a "military counselor", he returned to his duty station.  He was incarcerated and court-martialed.  He admits that he lied but believes that if he had been able to talk to the colonel he could have explained the situation and the stress he was under. 

3.  The applicant provides a statement from the counselor he worked with at the time he went AWOL, 10 character letters from family and friends, three documents referencing his church work, and a statement from a Member of Congress. 

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 enlisted in the Army Reserve under the Delayed Entry Program (DEP) on 7 January 1986 and entered active duty on 11 March 1986.

3.  The applicant went AWOL on 21 October 1988 and remained absent until 
3 November 1988.  He was placed in pretrial confinement on 4 November 1988 and general court-martial charges were preferred against him.

4.  On 8 February 1989, a general court-martial found the applicant guilty of being AWOL from 21 October 1988 through 3 November 1988 and larceny of property of a value of about $550.00.  The sentence imposed was reduction to pay grade E-1, a forfeiture of $400.00 pay per month for 30 months, confinement for 2 years and 6 months, and a Bad Conduct Discharge.

5.  The convening authority approved the general court-martial findings and sentence on 4 May 1989 and directed that, except for the BCD, the sentence be executed.

6.  On 25 October 1989, the United States Army Court of Military Review affirmed the findings and sentence of the general court-martial as approved by the court-martial convening authority.

7.  The applicant appealed his case to the United States Court of Military Appeals.  On 12 January 1990, the Court denied the applicant's petition for a grant of review.

8.  With the provisions of Article 71 (c), Uniform Code of Military Justice, having been complied with, Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, General Court-Martial Order Number 56, dated 18 April 1990, directed that the BCD be executed.  The applicant was to be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, to complete his period of confinement.

9.   U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Order 068-04, dated 25 April 1990, discharged the applicant effective 4 May 1990.

10.  The applicant was discharged on 4 May 1990 with a BCD.  He had completed 2 years, 7 months, and 23 days of creditable service with 546 days of lost time.

11.  All ten character reference letters describe the applicant as dependable, committed, and hard working.  He is further described as a man who is welcoming of challenges and very courageous.  He enjoys learning and surpasses people's expectations.  He is the kind of person that gives of himself and he is a good provider and family man. 

12.  The applicant provides certificates showing his position as a "Vision Partner" in the Creflo Dollar Ministries, and that he was baptized and completed the Foundation Ministry Classes at the Living Word Christian Center.

13.   The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board that would disturb the finality of a court-martial conviction.  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 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.

14.  Army Regulation 635-200, at chapter 3, outlines the criteria for characterization of service.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(l), in pertinent part, states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The record does not contain any evidence and the applicant has provided no evidence to support that he was experiencing family problems.  Neither has he provided any mitigating evidence to warrant clemency.  

2.  By his own admission, the applicant stole from a fellow Soldier and went AWOL when he did not get what he wanted from his command.
3.  Court-martial was warranted by the gravity of the offenses charged, discharge proceedings were accomplished in accordance with law and regulations applicable at the time, and there is no indication of procedural errors that would tend to jeopardize the applicant's rights.  The discharge appropriately characterizes the misconduct for which the applicant was convicted and his overall record of service.

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 has failed to submit evidence that would satisfy this requirement.

5.  The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's Bad Conduct Discharge.

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
ABCMR Record of Proceedings (cont)                                         AR20070017065



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508