IN THE CASE OF:
BOARD DATE: 29 July 2008
DOCKET NUMBER: AR20080006900
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 bad conduct discharge be changed to a general discharge.
2. The applicant states, in effect, that he served seven months and 28 days of a one year and one day sentence. He contends that he was released on good behavior, that he attended three Drug and Alcohol treatment programs, and that he has been clean and sober for over 13 years.
3. The applicant provides three certificates of achievement and one certificate of training.
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 applicants 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 applicants 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 Regular Army on 28 July 1981 and trained as a motor transport operator.
3. On 12 December 1983, in accordance with his pleas, the applicant was convicted by a general court-martial of violating a lawful general regulation (reporting for duty and performing military duties as a driver with a blood alcohol level in excess of .05), damaging military property, and driving while drunk. He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 1 year and 1 day, and to be discharged from the service with a bad conduct discharge. On 17 January 1984, the convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for a period of 9 months, and a bad conduct discharge.
4. On 9 July 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.
5. On 14 November 1984, the convening authority ordered the bad conduct discharge to be executed.
6. Accordingly, the applicant was discharged with a bad conduct discharge on
23 November 1984 under the provisions of Army Regulation 635-200, chapter
3, as a result of a court-martial. He had served 2 years, 8 months, and 29 days of active creditable service with 207 days of lost time due to confinement.
7. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
8. 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 Soldiers separation specifically allows such characterization.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. Good post service conduct and accomplishments alone are not normally a basis for upgrading a discharge.
2. Trial by 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.
3. The applicant's record of service included one general court-martial conviction and 207 days of lost time. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xx____ ___xx___ __xx____ 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.
______ _xxxx______ ___
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.
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