IN THE CASE OF:	 

		BOARD DATE:	       23 December 2008

		DOCKET NUMBER:  AR20080014248 


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 honorable.  

2.  The applicant states, in effect, that this is his first time applying for an upgrade in 25 years and that an honorable discharge is needed for employment purposes and Department of Veterans Affairs (DVA) benefits.    

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 in the Regular Army on 18 January 1980 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty (MOS) 16P (air defense artillery short range missile crewman).

3.  On 28 October 1981, a bar to reenlistment was imposed against the applicant. 

4.  In May 1982, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 April 1982 to 22 April 1982.  His punishment consisted of a forfeiture of pay. 

5.  On 14 September 1982, nonjudicial punishment was imposed against the applicant for one charge of failing to go at the time prescribed to his appointed place of duty and one charge of leaving his appointed place of duty without authority.  His punishment consisted of a forfeiture of pay and extra duty. 

6.  On 28 December 1982, in accordance with his plea, the applicant was convicted by a special court-martial of larceny.  He was sentenced to forfeit $365.00 pay per month for 4 months, to be confined at hard labor for 100 days, and to be discharged from the service with a bad conduct discharge.  On
10 February 1983 the convening authority approved only so much of the sentence as provided for the bad conduct discharge, confinement for 90 days, and forfeiture of $365 pay per month for 4 months.

7.  The decision of the U.S. Army Court of Military Review is not available.  However, on 22 July 1983, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

8.  The applicant was subsequently discharged on 15 August 1983 with a bad conduct discharge under the provisions of Army Regulation 635-200, chapter 3, by reason of as a result of a court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under Special Court-Martial Order Number 100, dated 22 July 1983 (i.e., the convening authority action).  He had served a total of 3 years, 3 months, and 25 days of creditable active service with 92 days of time lost due to AWOL and confinement. 

9.  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.

10.  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.  

11.  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.

12.  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.  A discharge is not upgraded for the purpose of obtaining employment opportunities or DVA benefits.

2.  Trial by court-martial was warranted by the gravity of the offense 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 a bar to reenlistment, two nonjudicial punishments, one special court-martial conviction, and 92 days of time lost.  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 or an honorable 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)                                         AR20080014248



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014248



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1