IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080016605 


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, that his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he feels that his court-martial was unfair because he had no idea the property his roommate stored at his house was stolen.  He also states that he did not take or do anything, but was given a bad conduct discharge and confinement.  He further states that the other Soldiers were reinstated and given general discharges.  He feels that he was punished unfairly and would like to have his discharge upgraded so that he can at least get medical benefits for his knees.  

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of 1 December 1982. 

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 record shows he enlisted in the United States Army Reserve Delayed Entry Program (DEP) on 10 May 1979.  He was discharged from the DEP on 19 June 1979 and enlisted in the Regular Army, in pay grade E-1, on
20 June 1979, for 3 years.  He completed basic combat and advanced training and was awarded military occupational specialty (MOS) 31J (Teletypewriter Repairer).  He was promoted to specialist four (SP4)/pay grade E-4 on
20 December 1980. 

3.  On 3 August 1981, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from his superior noncommissioned officer on 24 and 29 July 1981; and for being disrespectful in language toward his superior noncommissioned officer on 24 July 1981.  His punishment included a reduction to private first class (PFC)/pay grade E-3, a forfeiture of $100.00 pay (suspended for 60 days), and extra duty for 10 days.  He was reduced to pay grade E-3 on 4 August 1981. He elected to appeal his punishment and his appeal was denied 7 August 1981.

4.  On 6 November 1981, the applicant accepted punishment under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 2 October 1981, 6 October 1981, 22 October 1981, and 2 November 1981.  His punishment included a reduction to private (PV2)/pay grade E-2, a forfeiture of $335.00 pay for one month, and extra duty for 10 days.  He was reduced to pay grade E-2 on 6 November 1981.

5.  On 20 November 1981, the applicant's punishment of forfeiture of $335.00 pay for one month, imposed on 6 November 1981, was mitigated to a forfeiture of $309.00 pay for one month.  On 2 December 1981, the applicant's punishment of forfeiture of $309.00 pay for one month was again mitigated to a forfeiture of $159.00 pay for one month.  

6.  On 10 February 1982, the applicant accepted punishment under Article 15, UCMJ, for absenting himself from his unit from 1 to 2 February 1982.  The Article 15 is annotated with a continuation sheet indicating additional offenses; however, the continuation sheet is not contained in the available records.  His punishment included a reduction to private (PV1)/pay grade E-1, a forfeiture of $115.00 pay for one month, and restriction and extra duty for 14 days.  He was reduced to pay grade E-1 on 10 February 1982.

7.  On 16 April 1982, the applicant was convicted by a special court-martial of two specifications of stealing the personal property of two Soldiers on 8 February 1982.  He was sentenced to confinement at hard labor for four months, a forfeiture of $367.00 pay per month for four months, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 16 April 1982.

8.  On 12 July 1982, the convening authority, Commanding General, Department of the Army, Headquarters, 24th Infantry Division (Mechanized), Fort Stewart, Georgia, approved the sentence as adjudged and forwarded the record of trial to The Judge Advocate General of the Army for review by the Court of Military Review.

9.  On 4 August 1982, the U.S. Army Court of Military Review opined that the Court, having found the approved findings of guilty on the sentence correct in law and fact and, having determined on the basis of the entire record that they should be approved, affirmed the finding of guilty and the sentence.

10.  On 1 December 1982, the appropriate authority approved the sentence and ordered it duly executed.  It was noted that the portion of the sentence to confinement had been served and the applicant was presently a member of the 24th Infantry Division on excess leave without pay at an unknown forwarding address.

11.  The applicant was discharged on 1 December 1982, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 11, as a result of court-martial, with a character of service of bad conduct.  He was credited with 3 years, 2 months, and 1 day of net active service and 102 days of lost time due to absence without authority and confinement.

12.  The applicant’s available records show he was reduced from SP4 to PV1 as a result of punishments under Article 15, prior to his court-martial.

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

17.  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 ABCMR is not empowered to change a court-martial 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 evidence shows that the applicant was convicted by a special court-martial and was found guilty of stealing the property of two other Soldiers.  He was discharged pursuant to the sentence of a special court-martial and was issued a bad conduct discharge after the sentence was affirmed.

2.  Trial by special court-martial was warranted by the gravity of the offenses charged.  A bad conduct discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  The applicant has submitted no evidence, other than his assertion that he was innocent of the charges or that the other similarly situated Soldiers were retained on active duty. 

4.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above, and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no cause for clemency.

5.  The applicant desires to have his bad conduct discharge upgraded so that he can qualify for medical and/or other benefits administered by the Department of Veterans Affairs and other Federal and State social services organizations; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

6.  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 any evidence that would satisfy this requirement.  

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)                                         AR20080016605



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ABCMR Record of Proceedings (cont)                                         AR20080016605


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