IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014369 


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, an upgrade of his bad conduct discharge. 

2.  The applicant states that he did not receive a copy of his discharge papers. 

3.  The applicant provided a Department of Veterans Affairs (DVA) statement of service, dated 12 August 2008, 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's records show that he enlisted in the Regular Army for a period of 3 years on 27 December 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records further show that he was awarded the Army Service Ribbon and the Overseas Service Ribbon.  His records do not show any achievements or significant accomplishments during his military service.

4.  On 27 October 1980, while stationed in the Republic of Korea, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a general regulation by knowingly assisting a person not authorized duty free merchandise, by purchasing certain items, and transferring such items to a local national, on or about 8 August 1980. His punishment consisted of reduction to private (PV2)/E-2 (suspended for 180 days), forfeiture of $283.00 a month for two months (suspended for 180 days), and 45 days of extra duty.

5.  On 3 November 1980, the suspension of the punishment of reduction to PV2/E-2 and forfeiture of $283.00 per month for two months imposed on 27 October 1980 was vacated and the unexecuted portion of the punishment was ordered executed.

6.  On 4 November 1980, the applicant's immediate commander initiated and recommended approval of a bar to reenlistment against the applicant citing his misconduct, two prior instances of failure to report, and one prior instance of inefficiency in the performance of his duties.  The applicant acknowledged receipt of a copy of the recommended bar to reenlistment action, that he had been counseled and advised of the basis for the action, and elected not to submit a statement in his own behalf.  His bar was subsequently approved by the proper authority.

7.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ as follows:

	a.  on 24 November 1980, for failing to go at the time prescribed to his appointed place of duty on four separate occasions, between on or about
7 November 1980 and on or about 11 November 1980.  His punishment consisted of an oral reprimand and 45 days of restriction;

	b.  on 8 January 1981, for being absent without leave (AWOL) during the period on or about 9 December 1980 through on or about 10 December 1980 and for breaking restriction on or about 10 December 1980.  His punishment consisted of forfeiture of $283.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty; and

	c.  on or about 13 October 1981, for being AWOL during the periods on or about 28 February 1981 through on or about 4 March 1981, on or about 5 May 1981 through on or about 15 May 1981, on or about 23 May 1981 through on or about 2 June 1981, on or about 14 July 1981 through on or about 15 July 1981, and on or about 22 July 1981 through on or about 7 August 1981.  His punishment consisted of reduction to private (PV1)/E-1 and forfeiture of $200.00 pay for one month.

8.  On 30 March 1982, the applicant pled guilty at a Special Court-Martial to five specifications of wrongfully and unlawfully making and uttering checks, in various amounts, with intent to defraud, then knowing that he did not have sufficient funds in that the accounts had been closed, on miscellaneous dates in November and December 1981; five specifications of stealing U.S. currency, of various amounts, on miscellaneous dates in December 1981; three specifications of wrongfully possessing, transferring, and selling 16 grams, more or less, of marijuana, on or about 5 January 1982; one specification of being AWOL during the period on or about 12 January 1982 through on or about 14 January 1982; and one specification of committing assault upon another individual by offering to cut him with a dangerous weapon, on or about 19 January 1982.  The Court sentenced him to confinement at hard labor for six months, forfeiture of $367.00 pay per month for six months, and a bad conduct discharge.  The sentence was adjudged on 30 March 1982.  

9.  On 23 April 1982, the convening authority, pursuant to a pretrial agreement approved only so much of the sentence as provided for confinement at hard labor for three months, forfeiture of $367.00 pay per month for three months, and a bad conduct discharge.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for review by a Court of Military Appeals.  Pending completion of appellate review, the applicant was ordered confined.

10.  On 12 November 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, Special Court-Martial Order Number 120, dated 1 December 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.


12.  The applicant was discharged from the Army on 12 January 1984.  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 discharge and that he completed 3 years, 6 months, and 21 days of creditable military service.  He also had 176 days of lost time.

13.  There is no indication in the applicant's records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's     15-year statute of limitations.

14.  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 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.

15.  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.

16.  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 applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant had a history of misconduct and a pattern of indiscipline, including acceptance of nonjudicial punishment on four separate occasions, multiple instances of AWOL, a bar to reenlistment, and one instance of a 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 laws and regulation, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  The applicant's claim that he did not receive his discharge papers is insufficient to grant clemency.

3.  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.  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.  

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20080014369



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ABCMR Record of Proceedings (cont)                                         AR20080014369



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