IN THE CASE OF:	  

		BOARD DATE:	       15 October 2008

		DOCKET NUMBER:  AR20080012475 


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 joined the Army without a full understanding of military requirements. 

3.  The applicant provides no additional evidence in support of his application.

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 16 August 1979 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).
3.  On 19 February 1980, nonjudicial punishment was imposed against the applicant for disrespectful language and deportment.  His punishment consisted of a forfeiture of pay and correctional custody. 

4.  On 15 April 1980, nonjudicial punishment was imposed against the applicant for disobeying a lawful command and being absent without leave (AWOL) for one day.  His punishment consisted of a forfeiture of pay and extra duty. 

5.  On 11 February 1981, the applicant was convicted by a general court-martial of two specifications of being AWOL (from 16 June 1980 to 4 August 1980 and from 16 September 1980 to 29 December 1980) and communicating a threat to injure and assault.  He was sentenced to forfeit $400.00 pay per month for 
12 months, to be confined at hard labor for 1 year, to be reduced to E-1, and to be discharged from the service with a bad conduct discharge.  On 1 April 1981, the convening authority approved the sentence.

6.  On 30 September 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 17 November 1981, the unexecuted portion of the sentence to confinement was remitted effective 18 November 1981.

8.  On 5 January 1982, the convening authority ordered the bad conduct discharge to be executed.

9.  Accordingly, the applicant was discharged with a bad conduct discharge on 
22 January 1982 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 13 days of creditable active service with 512 days of lost time due to confinement. 

10.  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.

11.  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.  

12.  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.

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.  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 applicant's record of service included two nonjudicial punishments, one general court-martial conviction, and 512 days of lost time.  In addition, communication of a threat and assault are not Army-specific offenses.  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)                                         AR20080012475



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ABCMR Record of Proceedings (cont)                                         AR20080012475



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