IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080006200 


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 an upgrade of his discharge.

2.  The applicant states that he was young at the time and served in a foreign country where he was introduced to drugs and alcohol by the same leaders that he trusted to guide him in the right direction, and did not fully understand the consequences of his actions at the time.  He further adds that since his discharge, he continued to seek self-improvement through counseling, education, volunteer work, and support to his church and community. 

3.  The applicant provides a character reference letter, dated 27 February 2007, 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 records show that he was born on 14 August 1957 and enlisted in the Regular Army at the age of 18 for a period of 3 years on 15 August 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).  He was subsequently assigned to Headquarters and Headquarters Company, 3rd Brigade, 3rd Armored Division, Germany.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records do not show any significant acts of valor during his military service.

4.  On 21 March 1977, at a Special Court-Martial, the applicant pled:

	a.  Not Guilty to Charge I, specification 1, orally communicating, to a female, certain insulting and indecent language, on or about 5 February 1977; and specification 2, orally communicating, to a second female, certain insulting and obscene language, on or about 19 October 1976; and Charge II, specification 1, unlawfully grabbing the first female around the body and pulling her to the ground, on or about 5 February 1977; and

	b.  Not Guilty to Charge I, specification 3, orally communicating, to a third female, certain insulting and obscene language, on or about 19 October 1976.  This specification was subsequently withdrawn by order of the convening authority.

5.  The Court found the applicant guilty of all charges and specifications and sentenced him to confinement at hard labor for 4 months, forfeiture of $250.00 pay per month for 4 months, reduction to the rank/grade of private (PVT)/E-1, and a bad conduct discharge.  The sentence was adjudged on 21 March 1977.

6.  On 24 March 1977, the convening authority approved only so much of the sentence as provided for reduction to the rank/grade of PVT/E-1, forfeiture of $249.00 pay per month for 4 months, confinement at hard labor for 4 months, and a bad conduct discharge.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.

7.  The applicant was transferred to the U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, for service of his sentence to confinement.

8.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, Special Court-Martial Order Number 210, dated 30 June 1977, shows that after 
serving the period of confinement adjudged on 21 March 1977, the applicant was restored to duty pending completion of appellate review, and placed on excess leave.

9.  On 29 November 1977, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, Kansas, Special Court-Martial Order Number 72, dated 1 May 1978, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  The applicant was discharged from the Army on 14 June 1979.  The DD Form 214 he was issued shows that he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as under other than honorable conditions and that he completed 3 years, 6 months, and 19 days of creditable military service.  He also had 101 days of lost time due to confinement. 

12.  In a character reference letter, dated 27 February 2007, a senior service officer of the Disabled American Veterans (DAV) stated that the applicant is an indispensable asset to the DAV and that his laudable volunteer services helped over 1,600 veterans and their families.  His unquestionable character, never-ending service, relentless time and energy, and unconditional love and joy exemplify a person who has learned from his past and is taking advantage of the opportunity to move forward with his life. 

13.  On 9 September 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

14.  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 (ABCMR) 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.

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

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's post-service self-improvement through counseling, education, and volunteer work, as well as his character reference letter, are noted.  However, during his military service, he demonstrated character and behavior characteristics that were not compatible with satisfactory continued service. 

3.  The applicant was 18 years of age at the time of his enlistment and nearly 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The applicant’s discharge accurately reflects his military service at that time.

5.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an upgrade to his discharge.  Moreover, through an apparent administrative error, his DD Form 214 shows an "other than honorable discharge" instead of the punitive "bad conduct discharge."  Thus, by a windfall, the applicant has already received an upgrade.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080006200



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ABCMR Record of Proceedings (cont)                                         AR20080006200



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