IN THE CASE OF:	

		BOARD DATE:	17 September 2008  

		DOCKET NUMBER:  AR20080007313 


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 that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, his discharge is unjust.  He states he was accused of talking to a private but was never caught talking to a private unless he was giving him an order.  He further states he needs to get his records straightened out so he can get government services.

3.  The applicant provides a copy of a letter of commendation, dated 27 August 1979; a certificate of achievement, dated 11 March 1982; a certificate of appreciation, dated 1981; one page from an NCOER (Noncommissioned Officer Evaluation Report), dated 21 June 1982; two diplomas for completion of training, dated 9 November 1979 and 5 September 1980; his separation orders, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 January 1985.

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 military personnel record shows he initially enlisted in the Regular Army on 14 November 1973 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 16P (Air Defense Artillery Short Range Gunnery Crewmember).  He was promoted to staff sergeant/pay grade E-6 on 18 May 1981.

3.  On 29 July 1982, the applicant was assigned as a drill sergeant candidate to the 4th Air Defense Artillery Training Battalion, 1st Air Defense Artillery Training Brigade (ADATB), at Fort Bliss, Texas.

4.  On 1 June 1983, the applicant was assigned as a senior drill instructor to 
D Battery, 4th Air Defense Artillery Training Battalion, 1st ADATB.

5.  On 29 September 1983, the applicant pled guilty and was convicted by a special court-martial of fraternizing and associating with a female trainee, by dating her, having her in his quarters, and having sexual relations with her; unlawfully asking a female trainee out on a date; two specifications of wrongful possession and use of marihuana, fraternizing and socializing with a female trainee by driving her to a bar, drinking with her, and asking her out for a date; and disobeying a lawful order from a commissioned officer.  His sentence consisted of reduction to pay grade E-1, forfeiture of $250.00 pay per month for 
2 months, 2 months confinement, and a bad conduct discharge.

6.  On 13 December 1983, the convening authority approved only so much of the sentence that provided for forfeiture of $250.00 per month for 2 months, reduction to pay grade E-1, and a bad conduct discharge.  

7.  On 25 June 1984, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 21 January 1985, the applicant's bad conduct discharge was ordered to be executed.

9.  On 29 January 1985, the applicant was discharged as a result of a court-martial.  He had completed a total of 10 years, 3 months, and 12 days of active service.  He had 334 days excess leave.

10.  The letter of commendation, certificates of achievement, training diplomas, and the portion of an NCOER submitted by the applicant are dated prior to the applicant's assignment as a drill instructor.

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

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

13.  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.  The applicant contends he needs his bad conduct discharge upgraded so he can receive government services.

2.  The ABCMR does not upgrade discharges based solely on the passage of time or to make an individual eligible for benefits from other agencies. 

3.  In promoting the applicant to staff sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  In addition, he was assigned as a senior drill instructor wherein he was in a special position of trust and responsibility and he was responsible for the welfare of those trainees who looked to him for guidance and were still new to the Army.  The applicant violated this special trust and confidence.   

4.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

6.  The commendatory evidence submitted by the applicant was noted.  However, they do not outweigh the abuse of authority displayed by the applicant in a special position of trust.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

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)                                         AR20080007313



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ABCMR Record of Proceedings (cont)                                         AR20080007313



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