IN THE CASE OF:
BOARD DATE: 05 AUGUST 2008
DOCKET NUMBER: AR20080008737
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 (BCD) be upgraded to a more favorable discharge.
2. The applicant states, in effect, that at the time of his enlistment he did not know how valuable his time in service in the Army was. However, he now knows that serving his country honorably is the best achievement/goal that he could have achieved in his life. He goes on to express his apology to the United States of America for his actions and behavior while in the military and states that he was young, naïve and unable to adapt to military life at the time. He requests that he be forgiven and that his discharge be upgraded to a more favorable discharge.
3. The applicant provides a handwritten letter explaining his request and a copy of his DD Form 214.
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 was born on 6 July 1965 and enlisted in Atlanta, Georgia on 25 February 1986 for a period of 3 years and training as a tactical communications center operator. He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Gordon, Georgia and was transferred to Fort Hood, Texas for his first and only permanent duty assignment.
3. He was advanced to the pay grade of E-4 on 10 February 1989 and on the same day, he reenlisted for a period of 4 years and training as a track vehicle repairer. The training base for track vehicle repair is Aberdeen Proving Ground, Maryland.
4. On 14 March 1990, he was convicted by a special court-martial at Fort Hood of being drunk and disorderly on 11 August 1989 at Aberdeen Proving Ground, Maryland and of being absent without leave (AWOL) from 11 October 1989 to 1 December 1989. He was sentenced to confinement for 2 months, reduction to the pay grade of E-1 and a BCD.
5. He was transferred to Fort Knox, Kentucky to serve his confinement and on 21 May 1990, he was placed on involuntary excess leave while awaiting the appellate review of his court-martial sentence.
6. On 29 June 1990, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
7. On 13 November 1990, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 4 years, 5 months, and 11 days of total active service and had approximately 99 days of lost time due to AWOL and confinement.
8. There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
9. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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. 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. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
3. The applicants contentions have been noted; however, he was 24 years of age at the time he committed the offenses for which he was convicted and he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence or basis to warrant an upgrade of his discharge based on clemency.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20080008737
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080008737
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2008 | 20080012086
The applicant requests, in effect, that her bad conduct discharge (BCD) be upgraded to a discharge that will allow her to join a Reserve unit. 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. Although not explained in the available records, the applicant was reduced to the pay grade of E-3 for misconduct on 1 April 1985.
ARMY | BCMR | CY2008 | 20080009465
The applicant requests, in effect, that his military records be corrected to show that his primary military occupational specialty (MOS) at the time of his release from active duty was 427.10 (Aircraft Armament Repairman). The applicant essentially states that once he returned from Vietnam, he was sent to Fort Hood, Texas with an MOS of 45G (Turret Artillery Repairman), but that this was not his primary MOS. The evidence of record also clearly shows that he served in Vietnam.
ARMY | BCMR | CY2014 | 20140012206
The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separations), paragraph 3-11, by reason of court-martial, with a BCD. General Court-Martial Order Number 641, issued by the U.S. Army Correctional Activity, Fort Riley, KS, dated 9 October 1990, states the applicant's sentence to a BCD, confinement for 18 months, and a forfeiture of $600.00 pay for 18...
ARMY | BCMR | CY2008 | 20080012316
The applicant enlisted in the Regular Army in Houston, Texas on 22 November 1989 for a period of 3 years, training as a single channel radio operator and assignment to Fort Hood, Texas. There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. A condition of submitting such a request is that the individual concerned must admit guilt to the...
ARMY | BCMR | CY2010 | 20100000180
The applicant requests his Bad Conduct Discharge (BCD) be upgraded to a General Discharge (GD). In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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. ...
ARMY | BCMR | CY2012 | 20120001788
Application for correction of military records (with supporting documents provided, if any). The applicant states he was discharged with a bad conduct discharge because he wrote $1,400.00 in bad checks in order to support his drinking problem. 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.
ARMY | BCMR | CY2013 | 20130020733
IN THE CASE OF: BOARD DATE: 15 July 2014 DOCKET NUMBER: AR20130020733 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted. Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.
ARMY | BCMR | CY2010 | 20100017096
The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to a general discharge. 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.
ARMY | BCMR | CY2015 | 20150002742
His record is void of the complete facts and circumstances of his discharge; however, his records contain a DD Form 214 showing he was discharged in pay grade E-1 on 4 October 1990, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Administrative Personnel Separations), chapter 3, As a result of court-martial, with a bad conduct discharge. The applicant was convicted by a general court-martial and was sentenced to a bad conduct discharge. His discharge was...
ARMY | BCMR | CY2010 | 20100009882
When his confinement was up, he was transferred to the Personnel Control Facility, Fort Dix, NJ and discharged with a BCD on 12 August 1993. d. Post-service, he worked in the aviation field as an airframe and power plant mechanic. On the way, they each ingested a tab of "LSD." After serving his sentence to confinement, the applicant was discharged with a BCD on 12 August 1993.