IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080007324 


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 record be corrected to show he was promoted to sergeant first class (SFC)/E-7. 

2.  The applicant states, in effect, that due to the findings of the "board" and due to the fact that he completed all the required Department of the Army (DA) schooling required for promotion, that he should be promoted from staff sergeant (SSG)/E-6 to SFC/E-7.  He contends that he was in the top 10 percent of all his schools, that he maintained a high level of readiness in physical training even during the ordeal (sic), and that he was held back from attendance at the Advanced Noncommissioned Officers Course even though he had been on the SFC/E-7 list for almost a year.  He also contends that his record is in error because the "board" overturned the ruling and in doing so uncovered the facts of his being promoted to SFC/E-7 which at first was restricted in order to hide the fact (sic).  Finally, he contends that the board should repair this injustice because during all of this he remained a Soldier; this with so many absences without leave (AWOL), suicides and mutinous behavior in the ranks, even after being done wrong. 

3.  The applicant provides a copy of Army Board for Correction of Military Records (ABCMR) Docket Number AR20060012650, dated 29 March 2007. 





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 served in the Regular Army from 11 October 1985 through
31 October 2003.  He attained the grade of SSG/E-6.

3.  On 5 May 2000, the applicant pled guilty and was convicted by special court-martial of 2 specifications of being AWOL, willfully disobeying a lawful order from a senior NCO, and disrespectful language to a first sergeant by saying "I don't have to keep you informed of where I am.  You f-----g guys are crazy" or words to that effect.  His sentence consisted of a reprimand.

4.  On 20 May 2002, the applicant was convicted by a special court-martial of
2 specifications of missing movement.  In accordance with a pretrial agreement, the convening authority approved confinement for only 13 months.  The remainder of the sentence included reduction in grade to private (PVT)/E-1; a forfeiture of $1,600.00 pay per month for 3 months; and a bad conduct discharge.

5.  The U.S. Army Court of Criminal Appeals noted that the maximum allowable forfeiture of $1,600.00 had been calculated using pay grade SSG/E-6 vice PVT/E-1.  The findings of guilty were affirmed and the sentence reassessed to provide a forfeiture of $737.00 pay per month for 3 months.  The U.S. Court of Appeals for the Armed Forces declined to grant an appeal and the applicant's bad conduct discharge was ordered executed.

6.  On 31 October 2003, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, Section IV, by reason of court-martial.  He was issued a Bad Conduct Discharge.  He was credited with 17 years,
10 months, and 6 days of active Federal service.  His rank and grade are shown properly on his DD Form 214 (Certificate of Release or Discharge from Active Duty) as PVT/E-1.
7.  In a previous case before the ABCMR (AR20060012650, dated 29 March 2007), the applicant's DD Form 214 was corrected to add the army Good Conduct Medal (4th Award), the Army Commendation Medal (1st Oak Leaf Cluster), the Army Achievement Medal (with 4th Bronze Oak Leaf Cluster), the National Defense Service Medal with 1 bronze service star, the Driver and Mechanic Badge with Driver-W Bar, the Air Assault Badge, and the Noncommissioned Officer Professional Development Ribbon with Numeral 2.  His military education, to include the Army Recruiter Course, the Army Material Command Airlift Load Planners Course, the Basic Noncommissioned Officers Course (Ammunition Specialist), and the Primary Leadership Development Course, were also added to his DD Form 214.  This decision did not address the applicant's type of discharge and the decision did not overturn in any way the applicant's Bad Conduct Discharge.

8.  There is no evidence in the applicant's official record to show he was recommended for or promoted to SFC/E-7.

9.  Army Regulation 635-200 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 the affirmed sentence ordered duly executed.

10.  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 change a court-martial 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 was convicted by special court-martial of 2 specifications of missing movement.  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.

2.  In accordance with the sentence imposed, the applicant was reduced from the rank and grade of SSG/E-6 to PVT/E-1.  There is no evidence in the available record to show that he was recommended for or promoted to SFC/E-7.  

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20080007324



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ABCMR Record of Proceedings (cont)                                         AR20080007324



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