IN THE CASE OF:	  

		BOARD DATE:	       16 October 2008

		DOCKET NUMBER:  AR20080012704 


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 an upgrade of his discharge.

2.  The applicant states that it has been over 29 years since his discharge.

3.  The applicant did not provide any additional documentary evidence in support of his request. 

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's records show that he enlisted in the New York Army National Guard (NYARNG) on 23 February 1976.  He subsequently entered active duty, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  On 20 July 1978, the applicant was ordered to active duty for a period of 18 months and was initially assigned to Fort Dix, New Jersey, and subsequently transferred to Fort Sill, Oklahoma.  

4.  The applicant’s records further show that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

5.  On 7 September 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order by taking pictures of trainees and charging trainees for the service on or about 3 September 1978.  His punishment consisted of forfeiture of $92.00 pay (suspended for 3 months), reduction to private (PVT)/E-1 (suspended for 3 months), 14 days of restriction, and 14 days of extra duty.

6.  On 29 September 1978, the suspension of the punishment of forfeiture of $92.00 pay, suspended for 3 months, imposed against the applicant, was vacated and the unexecuted portion of the punishment was ordered executed.

7.  On 4 May 1979, the applicant pled guilty at a Special Court-Martial for one specification of wrongfully possessing 155 grams, more or less, or marijuana, on or about 28 February 1979; one specification of attempting to wrongfully sell marijuana, on or about 28 February 1979; and one specification of being absent without leave (AWOL) from on or about 28 February 1979 through on or about 2 April 1979.  The Court sentenced him to confinement at hard labor for 3 months, forfeiture of $250.00 pay per month for 3 months, reduction to the rank/grade of private (PVT)/E-1, and a bad conduct discharge.  The sentence was adjudged on 4 May 1979 and approved on 31 May 1979.

8.  On 28 June 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  On 14 August 1979, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review of the decision of the U.S. Army Court of Military Review.




10.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Special Court-Martial Order Number 97, dated 9 October 1979, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

11.  The applicant was discharged from the Army on 21 November 1979.  The DD Form 214 he was issued shows that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 1 year, 1 month, and 23 days of creditable military service, and 68 days of lost time. 

12.  On 7 December 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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 (ABCMR) 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.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had a history of misconduct and a pattern of indiscipline, including one instance of an Article 15 and one instance of a Special Court-Martial.  His trial by Special 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 characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general discharge.

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.


															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)                                         AR20080012704



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ABCMR Record of Proceedings (cont)                                         AR20080012704



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