IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20080008458
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 honorable.
2. The applicant states that he was a model Soldier for his whole career, up to the point where he went absent without leave (AWOL). That was the only bad mark he has ever had on his record. He realizes that he was at fault, but he has been punished enough for this mistake. He has lived the past 23 years as best he could. He has been gainfully employed since then. He has never been in trouble with any law enforcement branch, and he has served God every day.
3. The applicant provides three letters of support, one dated 30 March 2008, one dated 28 September 2007, and one undated; and three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty).
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. After having had over 9 years of prior active duty, the applicant enlisted in the Regular Army on 15 August 1977.
3. The applicant was assigned to recruiting duty in January 1980. He was promoted to Sergeant First Class (SFC), E-7, on 16 September 1981.
4. On 18 December 1985, the applicant was convicted, in accordance with his plea, by a special court-martial of being AWOL from on or about 15 May 1985 to on or about 24 September 1985. A panel of members sentenced him to be discharged with a bad conduct discharge.
5. On 29 August 1986, the U. S. Army Court of Military Review affirmed the findings of guilty (in a unanimous decision) and the sentence (in a 2 to 1 decision). The dissenting judge believed that sentence relief should have been granted. It was his opinion the evidence of record established the applicants rehabilitation potential and that he should have been afforded the opportunity to complete his service honorably. He noted the applicant had over 17 years of honorable service at the time he went AWOL; he noted the breakup of the applicants marriage and the pressures of his work as a recruiter contributed to his going AWOL; he noted that the applicant had an unblemished service record consistent with his position as a senior noncommissioned officer during his 17 years of service; and he noted that testimony at the applicants presentencing proceeding was uniform in characterizing the applicant as having rehabilitation potential and as being of future worth to the Army. The dissenting judge stated that he believed sentence relief in the form of sentencing the applicant only to a reduction to Private First Class, E-3, was warranted.
6. On 1 June 1987, pursuant to his sentence by court-martial, the applicant was discharged, in pay grade E-1, with a bad conduct discharge. He had completed a total of 18 years, 8 months, and 19 days of creditable active service.
7. 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 applicants contentions, and the comments of the dissenting judge on the U. S. Army Court of Military Review, have been carefully considered.
2. It is recognized that the applicant had many years of honorable service prior to his going AWOL; however, it is also recognized that he was a senior noncommissioned officer with those many years of Army experience behind him.
3. It appears that the members of the court-martial considered some leniency in his case by not recommending any confinement. There is insufficient evidence that would warrant further clemency.
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.
ABCMR Record of Proceedings (cont) AR20080008458
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ABCMR Record of Proceedings (cont) AR20080008458
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