IN THE CASE OF:	

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080009217


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 upgraded.

2.  The applicant states, in effect, that at the time of his discharge he was under a lot of stress due to his mother’s death and his drug and alcohol problem.

3.  The applicant provides two applications and a letter, dated 11 April 2008, from a Member of Congress.

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 enlisted on 23 September 1975 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 51A (construction and utilities worker).
3.  On 5 March 1976, nonjudicial punishment was imposed against the applicant for causing a breach of peace by using profane language.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 6 May 1976, the applicant was convicted by a special court-martial of two specifications of larceny and one specification of wrongful appropriation.  He was sentenced to forfeit $240.00 pay per month for 3 months, to be confined at hard labor for 3 months, to be reduced to E-1, and to be discharged from the service with a bad conduct discharge.  On 30 July 1976, the convening authority approved the sentence.

5.  On 30 July 1976, the applicant underwent an out-processing confinement medical examination and he reported that his health was good.  He also indicated that there had been no change in his health since his last physical.

6.  On 24 January 1977, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 5 January 1977 to 18 January 1977.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

7.  The U.S. Army Court of Military Review decision is not available.  However, on 28 March 1977, the convening authority ordered the bad conduct discharge to be executed.

8.  Accordingly, the applicant was discharged with a bad conduct discharge on 6 April 1977 under the provisions of Army Regulation 635-200, chapter 
11, as a result of a court-martial.  He had served a total of 1 year and 4 months of creditable active service with 75 days of lost time due to confinement.  (His DD Form 214 does not show his lost time due to AWOL).  His DD Form 214 characterizes his service as under other than honorable conditions.

9.  There is no evidence of record which shows the applicant was diagnosed with alcohol or drug abuse or dependency.

10.  On 5 April 1978, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, 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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise 
so meritorious that any other characterization would be clearly inappropriate.  

13.  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 Soldier’s separation specifically allows such characterization.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.  Personal problems are not normally grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from his chain of command or chaplain as a way to resolve his problems within established Army procedures.

2.  Although the applicant contends that he had a drug and alcohol problem prior to his discharge, there is no evidence of record to support this contention.

3.  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.

4.  The applicant's record of service included two nonjudicial punishments, one special court-martial conviction, and at least 75 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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.
ABCMR Record of Proceedings (cont)                                         AR20080009217



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ABCMR Record of Proceedings (cont)                                         AR20080009217



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