IN THE CASE OF:	  

		BOARD DATE:	 	  5 February 2009 

		DOCKET NUMBER:  AR20080012807 


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 to a general discharge or a discharge under other than honorable conditions. 

2.  The applicant states, in effect, that he was tried for being absent without leave (AWOL) for four days and violating the one kilometer zone in Germany and he believes that a sentence of one year of confinement and a bad conduct discharge was too severe.  He also states that he was not properly advised by counsel and that he suffers from Post Traumatic Stress Disorder.  

3.  The applicant provides DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 8 December 1987 and 30 March 1984.

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.  Having prior service, the applicant enlisted in the Regular Army on 
13 November 1985 for a period of 3 years.  He served as a tank driver in Germany from 7 April 1986 through 29 September 1986.     

3.  On 23 January 1987, contrary to his pleas, the applicant was convicted by a general court-martial of being AWOL from 30 September 1986 to 4 October 1986 and of violating a lawful general regulation (violating the one kilometer zone in Germany).  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 1 year, and to be discharged from the service with a bad conduct discharge.  On 20 March 1987, the convening authority approved the sentence.

4.  On 24 June 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

5.  On 25 November 1987, the convening authority ordered the bad conduct discharge to be executed.

6.  Accordingly, the applicant was discharged with a bad conduct discharge on 
8 December 1987 under the provisions of Army Regulation 635-200, chapter 
3, as a result of a court-martial.  He had served a total of 1 year, 7 months, and 
6 days of creditable active service with 283 days of lost time due to AWOL and confinement.  

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation 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. 

8.  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.

9.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court-martial.  

10.  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 applicant’s contentions that he was not properly advised by counsel and that he received a harsh sentence relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

2.  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.

3.  The applicant's record of service included one general court-martial conviction and 283 days of lost time.  As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or a discharge under other than honorable conditions.

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.


      ______ _   __X_____   ___
               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)                                         AR20080012807





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012807



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1