IN THE CASE OF:	  

		BOARD DATE:	       23 December 2008

		DOCKET NUMBER:  AR20080014943 


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 served honorably for 17 years, he performed duties of platoon sergeant during the first Gulf War, and he was awarded the Meritorious Service Medal and other awards.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 he enlisted in the Regular Army for a period of 3 years on 29 August 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 45K (Tank Turret Repairman).  He was honorably released from active duty on        29 August 1978 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.

3.  After a break in service, the applicant enlisted in the Regular Army for a period of 3 years on 12 March 1980.  He subsequently executed a series of reenlistments including two 6-year reenlistments on 5 January 1983 and 20 October 1989 and was promoted to staff sergeant (SSG)/E-6 on 27 August 1982.

4.  The applicant’s records also show he completed several overseas tours including tours in Korea from 29 May 1981 to 31 May 1982 and Germany from
13 June 1990 to 3 December 1991.  While stationed in Germany, he also served in Southwest Asia in support of Operations Desert Shield/Desert Storm from 22 December 1990 to 19 May 1991.

5.  The applicant's records show he was awarded the Army Commendation Medal (4th Award), the Army Achievement Medal, the Army Good Conduct Medal (5th Award), the Meritorious Unit Commendation, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon with numeral 3, the Southwest Asia Service Medal with three bronze service stars, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the  Kuwait Liberation Medal (KU) and (SA), the Driver and Mechanic Badge with Mechanic Bar, and the Expert Marksmanship Qualification Badge with Rifle Bar.  

6.  On 30 December 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for destroying military property, of a value of $2.00, through neglect, by pulling on the chain of a gate, on or about 9 December 1982.  His punishment consisted of a letter of reprimand.

7.  On 30 December 1982, the applicant was issued a letter of reprimand by his battalion commander for his misconduct on 9 December 1982. 

8.  On 1 June 1993, subsequent to a thorough investigation conducted by the U.S. Army Criminal Investigation Command (USACIDC), court-martial charges were preferred against the applicant for one specification of selling to another individual or otherwise disposing of by trading to the individual for two registered hunting dogs, a set of night vision goggles, of a value of over $100.00, military property of the United States, between on or about 1 January 1992 and 31 March 1992.

9.  The applicant's records show that he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge if the request was approved, and of the procedures and rights that were available to him.  Following consultation with legal counsel, on 28 July 1993, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

10.  On 24 August 1993, the separation authority disapproved the applicant's request for discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

11.  On 24 August 1993, the applicant pled not guilty at a General Court-Martial to one specification of wrongfully disposing of military property in excess of $100.00 between on or about 1 January 1992 and 31 March 1992.  The Court found the applicant guilty of the charge and specification and sentenced him to reduction to the rank of private (PV1)/E-1 and a bad conduct discharge.  The sentence was adjudged on 24 August 1993 and was approved on 27 October 1993.  

12.  The applicant’s records show that he was placed on excess leave effective 9 November 1993. 

13.  On 26 October 1994, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

14.  On 12 April 1995, the applicant petitioned the U.S. Court of Military Appeals to grant a review of his conviction.  However, on 10 July 1995, the Court denied his petition for a review.

15.  Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, General Court-Martial Orders Number 50, dated 15 August 1995, show that the sentence to a bad conduct discharge, adjudged on 24 August 1993, has been finally affirmed and that the bad conduct discharge would be executed.



16.  On 30 March 1996, due to closure of Fort Dix, the U.S. Army Personnel Control Facility, Fort Dix, published Orders 090-77, administratively reassigning the applicant from Fort Dix, to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky.

17.  The applicant was discharged from the Army on 15 March 2001.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he was discharged under the provisions of chapter 3 of Army Regulation 635-200 as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 21 years and 3 days of creditable military service.  

18.  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.

19.  Army Regulation 635-200 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.

20.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded. 

2.  The evidence of record shows the applicant was a senior noncommissioned officer and had completed nearly 15 years of service at the time of his misconduct.  On the surface, his offense of disposing of military issued night vision goggles in exchange for hunting dogs appears to be light.  However, had the military night vision goggles fallen into the wrong hands, his actions could or would have caused great harm to Soldiers and the Army.

3.  The evidence of record shows that the applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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.

4.  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.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general 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)                                         AR20080014943



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014943



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1