IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080005309 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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, that his court-martial and subsequent discharge were unfair.  He claims that his absent without leave (AWOL) offenses were the result of his marital problems he was experiencing due to the infidelity of his wife.  He states that instead of assisting him with counseling, his chain of command chose to continually hit him with non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He states that the incident that led to his discharge was the result of racial prejudice on the part of a white Solider, who had threatened to kill him, and that while he was court-martialed, this white Soldier was never charged.  He concludes by requesting that his discharge be upgraded because he paid far too much already and will continue to pay because the nightmares he suffers from because of these incidents will never go away.  

3.  The applicant provides a self-authored statement in support of his 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 he enlisted in the Regular Army and entered active duty on 19 September 1973, and was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  The applicant's record shows the highest rank he held while serving on active duty was private/E-2 (PV2).  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals an extensive disciplinary history that includes two Special Court-Martial (SPCM) convictions on 14 March 1975 and 
25 February 1976, and his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on nine separate occasions between 24 June 1974 and 6 November 1975.

5.  On 25 February 1976, an SPCM found the applicant guilty, contrary to his plea, of violating Article 128 of the UCMJ by assaulting another Soldier. The resulting approved sentence was confinement at hard labor for 75 days, a forfeiture of $150.00 per month for three months, and a BCD.

6.  On 10 November 1976, the United States Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant’s case.

7.  On 18 March 1977, the United States Court of Military Appeals, after considering the applicant’s case, denied his appeal petition.

8.  SPCM Order Number 158, issued by Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, dated 27 April 1976, directed, Article 71(c) of the UCMJ having been complied with, that the BCD be duly executed.

9.  On 11 March 1977, the applicant was discharged with a BCD after completing a total of 3 years and 1 month of creditable active military service and accruing 175 days of time lost due to AWOL and confinement.

10. On 23 July 1980, after considering the applicant’s case, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

11.  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 will be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

12.  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 contention that his discharge was unfair was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.   By law, any redress by this Board of the finality of a court-martial conviction 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 evidence of record confirms that in addition to the SPCM that resulted in the applicant's BCD, he also had accrued an extensive disciplinary record that included a second SPCM conviction and his acceptance of NJP on nine separate occasions.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and given his undistinguished record of service, 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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080005309





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ABCMR Record of Proceedings (cont)                                         AR20080005309



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