IN THE CASE OF:	     

		BOARD DATE:	          25 September 2008

		DOCKET NUMBER:    AR20080005580 


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, that his discharge be upgraded.

2.  The applicant states, in effect, that he had a dental and bed wetting problem.  The applicant claims that he was heckled by his first sergeant, who was then reprimanded.  The applicant further claims that things got worse for him in his unit. The applicant continues that he should have been separated due to an existing medical condition.  The applicant states that he is in the New Life Recovery Program and has stopped smoking, drinking and doing drugs.

3.  The applicant provides a copy of his Bad Conduct Discharge Certificate, dated 11 May 1981; a copy of a letter of participation in the New Life Recovery Program, dated 4 March 2008; and a copy of a notice for non-payment from the New Life Recovery Program, dated 25 February 2008, in support of this 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 facts and circumstances of the applicant's separation are not available for review with this case; however, there are sufficient records to make a fair and impartial decision.

3.  The applicant's records show that he enlisted in the Regular Army on 20 June 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  The highest grade the applicant held was private first class/pay grade E-3.

4.  The applicant's records show he received the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar for qualifying with the .45 Caliber Pistol.

5.  The applicant's records are incomplete and do not show any significant acts of valor during his military service.  The records do not contain disciplinary history or complete records related to his court-martial or review.

6.  Department of the Army Headquarters, Fort Carson, Colorado, and Headquarters, 4th infantry Division (Mechanized), Fort Carson, Colorado, Orders 141-610, dated 18 July 1980, show the applicant was assigned to the United States Army Personnel Control Facility, United States Army Garrison, Fort Carson, Colorado, effective on 7 July 1980.

7.  Department of the Army Headquarters, Fort Carson, Colorado, and Headquarters, 4th infantry Division (Mechanized), Fort Carson, Colorado, Orders 178-71, dated 10 September 1980, show the applicant was transferred to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, for further confinement.

8.  Department of the Army United States Disciplinary Barracks, United States Army Combined Arms Center, Fort Leavenworth, Kansas, Orders 212-18, dated 31 October 1980, show the applicant was pending completion of appellate review and execution of a Bad Conduct Discharge.

9.  Department of the Army Headquarters 7th Infantry Division, Fort Ord, California, Orders 091-507, dated 4 May 1981, show the applicant's effective date of discharge as 11 May 1981.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Separation of Enlisted Personnel), dated 11 May 1981.  His DD Form 214 also shows that during this period of enlistment he completed 1 year, 6 months, and 24 days of active military service with 485 days of lost time due to AWOL or confinement.  The DD Form 214 characterizes the applicant's service as "under other than honorable conditions."

11.  The applicant's record does not contain documents which show he was treated for any medical conditions that existed prior to his entering the service.

12.  The applicant provided a copy of his DD Form 259A (Bad Conduct Discharge Certificate) which shows that he was discharged from the Army of The United States on 11 May 1981 by reason of sentence of a special court-martial.

13.  The applicant provides a letter of participation and a request for a leave of absence from the New Life Recovery Program/Program Status, dated 4 March 2008.  The letter of request shows that the applicant will complete Phase 4 of the New Life Recovery Program on 1 May 2008.  The letter shows that the program is a four-phase, 13- to 18-month Christian-based Residential Drug and Alcohol Recovery Program that the applicant began on 20 March 2007. Additionally, the letter shows that the applicant is requesting to complete the program now and pay his obligation after his graduation.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect, at the time established policy and procedures for separating members with a dishonorable or bad conduct discharge.  The regulation provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

16.  Army Regulation 635-200, paragraph 3-7a, 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.

17.  Army Regulation 635-200, paragraph 3-7b, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded due to an existing medical condition.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.

3.  The applicant's DD Form 259A indicated the applicant was tried by a special court-martial resulting in the issuance of a Bad Conduct Discharge Certificate.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The severity of the applicant's misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

5.  The letter submitted by the applicant showed his participation in the New Life Recovery Program is noted.  However, the applicant has failed to show through the evidence submitted or the evidence of record that the character of discharge issued to him was in error or unjust.  Therefore, there is no basis for granting his request.

6.  By law, any redress by this Board of the finality of a court-martial conviction 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.

7.  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.

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)                                         AR20080005580



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ABCMR Record of Proceedings (cont)                                         AR20080005580



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