IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080014295 


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 a general discharge, under honorable conditions.

2.  The applicant states, in effect, that his discharge is inequitable because it was based on one isolated incident during his entire 84 months of military service.  He had no other adverse actions. 

3.  The applicant provides no supporting documentation.

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.  On 7 December 1977, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He subsequently attended and graduated from the Clinical Specialist Course, Phase I and Phase II.

3.  On 5 September 1978, the applicant was assigned for duty as a clinical specialist with the 5th Battalion, 32nd Armor Regiment, at Fort Stewart, Georgia.

4.  On 4 May 1979, the applicant was reassigned for duty as an ambulance driver with the 2nd Battalion, 19th Infantry Regiment, at Fort Stewart, Georgia. 

5.  On 1 July 1980, the applicant was promoted to specialist four, pay grade E-4.

6.  On 30 October 1980, the applicant reenlisted in the Regular Army for 4 years.

7.  On 15 December 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ),       for wrongfully and falsely altering a Request and Authority for Leave (DA Form 31) and for being absent without leave (AWOL) during the period from 2 to           5 December 1980.  The punishment included reduction to pay grade E-3 (suspended), and 14 days restriction and extra duty.

8.  On 9 January 1981, the applicant was reassigned for duty as a patient care specialist at Fort Gordon, Georgia.

9.  On 22 July 1981, the applicant was reassigned for special duty with the Morale Support Activities. 

10.  The applicant was held in civil confinement during the period from 15 to 
27 September 1981.  On 28 September 1981, he was reassigned for duty as a patient care specialist.

11.  On 12 November 1981, the applicant accepted NJP for wrongful possession of an undetermined amount of marijuana.  The punishment included reduction to pay grade E-3 (suspended) and a verbal reprimand.

12.  The applicant was held in civilian confinement from 16 January to 
28 February 1984.  

13.   On 12 March 1984, the applicant's commander recommended that the applicant be barred from reenlistment.  The commander cited as a basis for this action the applicant's two NJPs, his wrongful possession of marijuana, revocation 
of a bond due to his failure to appear in civil court, and his civilian confinement in January 1984.  The applicant was counseled and elected to make a statement [not available for review] in his own behalf.  On 7 May 1984, the appropriate authority approved the bar to reenlistment.  

14.  On 17 December 1984, a charge was preferred under the UCMJ for violation of Article 121 (one specification), for stealing three rings valued at about $549.33, the property of a recently deceased person at the time of the larceny. 

15.  On 8 January 1985, the applicant offered to plead guilty to the charge and specification except for substituting the words, "wrongfully appropriate" and "wrongful appropriation" for the words "steal and larceny," respectfully.  In return the convening authority agreed to suspend, for a period of one year from the date of his action, so much of any sentence to confinement in excess of 6 months and to suspend any discharge greater than a Bad Conduct Discharge.  Furthermore, there was no agreement with respect to any adjudged reduction or forfeitures which may be approved unsuspended.  The offer was accepted by the convening authority. 

16.  On 17 January 1985, before a military judge at a General Court-Martial, the applicant pled guilty to the charge and specification, except for substituting the words, "wrongfully appropriate" and "wrongful appropriation" for the words "steal and larceny," respectfully.

17.  The military judge found him guilty of wrongful appropriation.   The applicant was sentenced to a reduction to pay grade E-1, 90 days confinement and a bad conduct discharge.

18.  On 24 January 1985, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the charges, pleas, and findings.  The SJA summarized the applicant's personal data and the evidence.  The SJA recommended approval of the sentence.  

19.  The applicant, through his defense counsel, petitioned for clemency citing as justification that he was only 25 years of age, had a wife and 2 year old daughter.  His wife earned approximately $600.00 per month.  The applicant's loss of income caused a severe financial hardship for his dependents.

20.  On 19 February 1985, the SJA recommended that the convening authority consider the matters raised by the defense in the petition for clemency.  The SJA adhered to his original recommendation.

21.  On 19 February 1985, the convening authority approved the sentence, and except for that part extending to a bad conduct discharge, ordered it executed.  

22.  On 22 May 1985, the United States Army Court of Military Review held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

23.  General Court-Martial Order Number 30, United States Army Signal Center and Fort Gordon, dated 19 November 1985, provided that the sentence to reduction to pay grade E-1, confinement of 90 days, and a bad conduct discharge, adjudged on 17 January 1985, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

24.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 3 December 1985, under the provisions of Army Regulation 635-200, Chapter 3, and received a bad conduct characterization of service

25.  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.

26.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), governs the policies and procedures for the separation of enlisted personnel.  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.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.  
2.  There is no available evidence showing that the applicant’s discharge was inequitable or that any of his rights were denied.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.  

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)                                         AR20080014295



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014295



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1