IN THE CASE OF:	  

		BOARD DATE:	  3 September 2008

		DOCKET NUMBER:  AR20080005733 


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 while he admits he made an error, he does not feel he was represented fairly and his punishment was too severe.  He further states he did not deserve a dishonorable discharge, and he would like to give his personal testimony.   

3.  The applicant provides his separation document, court-martial documents and orders, an enlistment agreement (DD Form 4) and his personnel records 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 initially enlisted in the Regular Army and entered active duty on 31 March 1971, and was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was honorably discharged for the purpose of immediate reenlistment on 30 December 1972, after serving on active duty for 1 year and 9 months, and he reenlisted on 
31 December 1972.  He was again honorably discharged for the purpose of immediate reenlistment on 29 September 1978, after completing a total of 
7 years, 5 months, and 19 days of creditable active military service, and he reenlisted and began his last period of active duty service on 30 September 1978.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 5 (Overseas Service) that he completed overseas tours in Vietnam, Germany, and Alaska.  Item 9 (Awards, Decorations & Campaigns) shows he earned the following awards:  National Defense Service Medal; Bronze Star Medal; Army Good Conduct Medal (2nd Award); Army Service Ribbon; Overseas Service Ribbon; Vietnam Service Medal; Republic of Vietnam (RVN) Campaign Medal; RVN Gallantry Cross with Palm Unit Citation; Combat Infantryman Badge; Expert Marksmanship Qualification Badge with Hand Grenade Bar; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Item 18 (Appointments and Reductions), shows he was initially promoted to sergeant (SGT) on 7 May 1975, and that this is the highest rank he attained while serving on active duty.  It also shows he was promoted and reduced to the grades indicated on the following dates:  14 July 1975, reduced to specialist four (SP4); 10 March 1978, promoted to SGT; 21 November 1978,reduced to SP4; 
15 December 1980, reduced to private first class (PFC); and 28 October 1981, reduced to private/E-1 (PV1).  

4.  The applicant's record reveals an extensive 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 five separate occasions between 19 December 1974 and 15 December 1980, and his conviction by a Special Court-Martial (SPCM).  

5.  On 19 August 1981, a SPCM found the applicant guilty of five specifications of violating Article 128 of the UCMJ by committing five acts of assault on other Soldiers on or about 14 July 1981; and of violating Article 134 of the UCMJ by wrongfully communicating threats (two specifications) to other Soldiers on or about 14 July 1981.  The resulting approved sentence was confinement at hard labor for four months and a BCD.  The remainder of the applicant's confinement sentence was deferred on 17 November 1981, by the commander of the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  

6.  On 8 February 1982, the United States Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant’s case.

7.  SPCM Order Number 200, issued by Headquarters, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, dated 8 April 1982, directed that the unexecuted confinement portion of the applicant's sentence be remitted, and SPCM Order Number 368, dated 12 July 1982, directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant's sentence be duly executed.  On 11 August 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 
11 years and 8 days of creditable active military service, and that he accrued 
126 days of time lost due to imprisonment.    

8.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would 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 was ordered duly executed.

10.  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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-11 contains guidance on hearings and states, in pertinent part, that applicants do not have a right to a hearing before the ABCMR.  The regulation does indicate that personal appearance hearings may be authorized by a panel of ABCMR members if they believe it is warranted.  In addition, the Director or the ABCMR may grant a formal hearing whenever justice requires.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was not represented fairly, and that his discharge was too severe was carefully considered.  However, there is insufficient evidence to support these claims. 

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 shows that in addition to the SPCM conviction that resulted in the applicant's BCD, he also had a disciplinary record that included his acceptance of NJP on five separate occasions for multiple disciplinary infractions.  Given the gravity of the offenses that resulted in his SPCM conviction and BCD, and based on his prior disciplinary history, 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.

5.  The applicant's request to provide his personal testimony was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

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)                                         AR20080005733



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ABCMR Record of Proceedings (cont)                                         AR20080005733


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