IN THE CASE OF:	  

		BOARD DATE:	       13 January 2009

		DOCKET NUMBER:  AR20080014760 


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 to an honorable discharge.

2.  The applicant states, in effect, that he believes his receiving a bad conduct discharge was extreme.  He further contends that he has learned from this episode.

3.  The applicant provides copies of his arrest record based on an internet search and five letters of support from employers, minister, family and friends.

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 3 April 1979, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 24 September 1979, the applicant was assigned for duty as a cook with the 3rd Battalion, 35th Field Artillery Regiment, in the Federal Republic of Germany.

4.  On 30 March 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order and to report to his place of duty.  The punishment included reduction to pay grade E-1 (suspended) and 7 days of extra duty.  The applicant did not appeal the punishment.  On 13 May 1980, that portion of the suspended punishment was vacated.

5.  On 8 July 1980, the applicant was convicted by a summary court-martial of disobeying a lawful command, failing to go (two specifications), and assault.  His sentence consisted of confinement at hard labor for 30 days, forfeiture of $299.00 for 1 month, and reduction to pay grade E-1.  He served 13 days in confinement.

6.  On 26 September 1980, the applicant was assigned for duty as a cook with the 385th Signal Company, at Fort Gordon, Georgia.

7.  On 18 February 1981, the applicant accepted NJP for being absent without leave during the period from 5 to 10 February 1981.  The punishment included a forfeiture of $116.00 pay per month for 1 month and 14 days of restriction and extra duty.  The applicant did not appeal the punishment and the commander directed the filing of the NJP to his Military Personnel Records Jacket.

8.  On 19 May 1981, the applicant accepted NJP for failure to go to his appointed place of duty.  The punishment included a forfeiture of $116.00 pay per month for 1 month and 14 days of restriction and extra duty.

9.  On 9 September 1981, charges were preferred under the Uniform Code of Military Justice for violation of Article 121 (charge I with 13 specifications) for larceny of military property by making and uttering worthless checks, for violation of Article 123 (Charge II with 24 specifications) for forgery by changing the social security number on checks, and for violation of Article 123a (charge III with 26 specifications) for uttering worthless checks with intent to defraud.

10.  On 17 November 1981, the applicant offered to plead guilty to all charges and specifications; however, should the military judge dismiss any charge or specification prior to his plea, he agreed to plead guilty only to those charges and specifications remaining.  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 to hard labor in excess of 12 months and 1 day.  Furthermore, there was no agreement with respect to any adjudged reduction, punitive discharge, or forfeitures which may be approved unsuspended.  The offer was accepted by the convening authority.

11.  On 20 November 1981, before a military judge at a general court-martial, the applicant pled guilty to Charge I and all specifications, not guilty to Charge II and all specifications, and guilty to Charge III and all specifications.

12.  The military judge found him guilty of Charge I and Charge III and all corresponding specifications and not guilty of Charge II and all specifications.  The applicant was sentenced to a reduction to pay grade E-1, forfeiture of all pay and allowances, 9 months confinement at hard labor, and a bad conduct discharge.

13.  On 8 January 1982, 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.

14.  On 20 January 1982, the convening authority approved the sentence.  The forfeitures shall apply to pay and allowances becoming due on or after the date of this action.   The record of trial was to be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  Pending completion of appellate review, the applicant was to be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.

15.  On 12 August 1982, the United States Army Court of Military Review held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

16.  On 14 March 1983, the Court of Military Appeals reversed the findings of the United States Army Court of Military Review as to specifications 14 through 26 of Charge III; findings of guilty of those specifications were set aside and the specifications were dismissed.  The court concluded that the applicant was not prejudiced in regard to the sentence.  The remaining findings of guilty and the sentence to a bad conduct discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 9 months were affirmed.  On 4 April 1983, the convening authority ordered the bad conduct discharge executed.

17.  The applicant's DD Form 214 shows that he was discharged on 12 April 1983 under the provisions of Army Regulation 635-200, chapter 3, and received a bad conduct characterization of service.

18.  The arrest record provided by the applicant shows that he was arrested and convicted of possession of marijuana in 1982, arrested for driving under suspension in 1989, arrested and convicted for possession of cocaine for distribution and possession of marijuana in 1990, and arrested and convicted of making false statements and false insurance claims in 1998.

19.  The letters of support provided by the applicant essentially report that he has been an independent contractor at the Yellow Cab Company since August 1985, that he is a caring individual who puts the needs of others before his own, and that he is dedicated to any endeavor with which he has involvement.  The applicant's minister wrote that he has known the applicant for 23 years and that he is a changed man who is a dependable, hard working family man.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted), 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.  

21.  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.

22.  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 contends that be believes his receiving a bad conduct discharge was extreme.  He further contends that he has learned from this episode.

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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  There is no available evidence showing that the applicant’s discharge was inequitable or that any of his rights were denied.

4.  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.

5.  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)                                         AR20080014760



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ABCMR Record of Proceedings (cont)                                         AR20080014760



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