IN THE CASE OF:	  

		BOARD DATE:	       13 January 2009

		DOCKET NUMBER:  AR20080015230 


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 honorable.

2.  The applicant states, in effect, that he believes the rules of evidence were not properly followed in his court-martial.  He is trying to overcome an injustice and be able to obtain health care from the Department of Veterans Affairs (VA) for any service connected disabilities. 

3.  The applicant provides four letters of support and a copy of his job performance rating. 

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 29 March 1974, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was subsequently assigned for duty as a supply clerk at Fort Ord, California.

3.  On 29 May 1977, the applicant was assigned for duty as a supply specialist with the 501st Aviation Battalion in the Federal Republic of Germany.  

4.  On 10 February 1978, the applicant was promoted to sergeant, pay 
grade E-5.

5.  On 17 March 1980, the applicant reenlisted in the Regular Army for 3 years.  

6.  On or about 13 June 1980, the applicant returned to Fort Jackson, South Carolina for advanced individual training as an administrative specialist.

7.  On 24 September 1980, the applicant was awarded MOS 71L (Administrative Specialist).  He was subsequently assigned for duty in his new MOS at Fort Huachuca, Arizona.  

8.  On 28 February 1983, the applicant was assigned for duty as an administrative specialist with the 2nd Adjutant General Company, 2nd Infantry Division, in the Republic of Korea.

9.  On 26 September 1983, a charge was preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 (stealing mail), one specification. 

10.  On 27 September 1983, the applicant requested to be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  On 6 October 1983, the appropriate authority disapproved his request.

11.  On 11 October 1983, the applicant offered to plead guilty to the charge and specification provided that, after the acceptance of pleas and the entry of findings in accordance with the pleas, the convening authority agreed to suspend for a period of 4 months from the date the sentence was adjudged, any confinement at hard labor adjudged which exceeded 4 months confinement at hard labor.   The offer was accepted by the convening authority. 



12.  On 12 October 1983, the applicant pled guilty to the charge and specification before a special court-martial.  The military judge found him guilty of the charge and specification.  He was sentenced to a bad conduct discharge, confinement at hard labor for 1 month, a forfeiture of $150.00 pay per month for 1 month, and reduction to pay grade E1.

13.  On 2 November 1983, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the charge, plea, and finding.  The SJA summarized the applicant's personal data and the evidence.  The SJA recommended approval of the sentence.  

14.  On 9 November 1983, the applicant requested that the convening authority suspend the punitive discharge for a period of 6 months.  In support of this request, he stated that he had almost 10 years of active service; was a first time offender, and had a wife and three children.  He further stated that he was aware of the seriousness of his offense and attributed his actions to negligence and poor judgment rather than to any appreciable criminal malevolence.

15.  On 22 November 1983, the SJA summarized the applicant's request for clemency and recommended approval of the sentence as adjudged.

16.  On 22 November 1983, 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 Army Correctional Activity, Fort Riley, Kansas, or elsewhere as competent authority may direct.

17.  On 30 January 1984, 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.

18.  Special Court-Martial Order Number 199, United States Army Correctional Activity, Fort Riley, Kansas, dated 23 May 1984, affirmed the findings and sentence.   Article 71(c) having been complied with, the bad conduct discharge was duly executed.  

19.  The applicant's DD Form 214 shows he was discharged on 31 May 1984, under the provisions of Army Regulation 635-200, Chapter 3, and received a bad conduct characterization of service. 

20.   The letters of support provided by the applicant essentially report that he has been devoted to his family and involved within the community.  He has been a positive influence.  He knows what he wants and keeps his priorities straight.  He has also been involved with youth service programs and has served as a big brother and father figure for many of the less fortunate young people.  

21.  The applicant's job performance rating indicates that all elements of his proficiency rating were outstanding or highly satisfactory.  It further states that he takes his job very seriously, does an awesome job with catered events, and is a great asset.

22.  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.  

23.  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.

24.  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 he suffered an injustice that led to his conviction.

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)                                         AR20080015230





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ABCMR Record of Proceedings (cont)                                         AR20080015230



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