IN THE CASE OF:	  

		BOARD DATE:	 26 March 2009 

		DOCKET NUMBER:  AR20080017044 


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.

2.  The applicant states, in effect, that he knows the bad conduct discharge was entirely his fault.  He didn't know much about alcoholism then.  He attended over 300 Alcoholics Anonymous (AA) meetings and had some private and group counseling.  Then the light finally went on; every time trouble showed up, alcohol was there, too.  Since recovering 22 years ago, he has accomplished great personal goals which have led him to become a better husband, father, leader, and citizen.

3.  In support of his request, the applicant submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an addendum to his DD Form 149 (Application for Correction of Military Record).

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 enlisted in the U.S. Army Reserve on 24 January 1980.  On 5 February 1980, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 19E (Armor Crewman).

3.  The applicant's records document the highest rank and pay grade he held on active duty was private first class/E-3.  The record shows he achieved this rank and pay grade on 1 December 1980.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

4.  On 2 September 1981, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being incapacitated for the proper performance of his duties on 15 August 1981 as a result of previous indulgence in intoxicating liquor.  The imposed punishment was a reduction to private/E-2, restriction to the company area for 5 days, and to perform extra duties for 5 days.  The applicant did not appeal the punishment imposed.

5.  On 7 January 1983, the applicant was tried and found guilty by a special court-martial of wrongfully absenting himself without leave on or about 30 August 1982 and remaining so absent until on or about 28 September 1982; of wrongfully absenting himself without leave on or about 3 October 1982 and remaining so absent until on or about 7 October 1982; of being disrespectful in language towards his superior noncommissioned officer on 11 October 1982; of wrongfully assaulting his superior noncommissioned officer by pushing him with his hands; and of wrongfully appropriating a power equalizer, the property of another Soldier, on 27 August 1982.  The applicant was sentenced to be reduced to the pay grade E-1, to forfeit $382.00 pay per month for 6 months, and to be confined at hard labor for 6 months.  The sentence was adjudged on 7 January 1983.  Only so much of the sentence as provided for his reduction to pay grade E-1, a forfeiture of $382.00 pay per month for 6 months, and confinement at hard labor for 4 months was approved on 2 February 1983.

6.  On 15 November 1982, the applicant's commander recommended the applicant be barred from reenlistment.  The applicant was advised of the basis for the action and was furnished a copy of the recommendation.  The applicant opted not to make a statement in his own behalf.  The evidence shows the Bar to Reenlistment Certificate was approved by the approving authority on 16 November 1982.  The Bar to Reenlistment was reviewed on 10 February 
1983 and the unit commander recommended that it remain in effect.
7.  On 28 July 1983, the applicant was tried and found guilty by a special court-martial of wrongfully absenting himself without leave on or about 29 April 1983 and remaining so absent until on or about 6 June 1983, of wrongfully absenting himself without leave on or about 13 June 1983 and remaining so absent until on or about 20 June 1983, and of wrongfully absenting himself without leave on or about 25 June 1983 and remaining so absent until on or about 6 July 1983.  The applicant was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 132 days, to forfeit $382.00 pay per month for 6 months, and to be reduced to pay grade E-1.  The sentence was adjudged on 28 July 1983.

8.  All documentary evidence pertinent to review of the applicant's court-martial and bad conduct discharge is not available in his service personnel record; therefore, administrative regularity in the review process of the court-martial and resulting sentence is presumed.

9.  On 20 June 1984, the sentence to a bad conduct discharge and confinement at hard labor having been affirmed pursuant to Article 66 and the provisions of Article 71(c) having been complied with, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, prepared and distributed Special Court-Martial Order Number 42 and ordered the sentence duly executed.

10.  On 23 July 1984, the applicant was discharged from the Army with a bad conduct discharge in the rank and pay grade of private/E-1 pursuant to the sentence of a special court-martial.  He had completed 3 years and 4 days of net active service with lost time for the periods:  30 August 1982 through 27 September 
1982, 3 October 1982 through 6 October 1982, 8 January 1983 through 8 April 
1983, 29 April 1983 through 5 June 1983, 13 June 1983 through 19 June 1983, 25 June 1983 through 5 July 1983, and 29 July 1983 through 13 November 1983.

11.  There is no record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service if clemency is determined to be appropriate.  Clemency is n act of mercy or instance of leniency to moderate the severity of the punishment imposed.

13.  Army Regulation 635-200 (Enlisted Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  This 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 after completion of appellate review and after such affirmed sentence had been duly ordered executed.

14.  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 separation specifically allows such characterization.

15.  In his application to the Board, the applicant stated he had attended over 300 AA meetings and had some private and group counseling.  Since recovering 22 years ago, he has accomplished great personal goals which have led him to become a better husband, father, leader, and citizen.  In the addendum to his application the applicant itemized eight personal post-service accomplishments; however, none of these accomplishments was corroborated by documentary evidence.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement.

2.  The evidence of record shows that while the applicant served on active duty, he received non-judicial punishment once, was subjected to two special courts-martial, and was barred from reenlistment.  In the second of his two special courts-martial, he was sentenced to, among other things, a bad conduct discharge.  The record also reflects seven time periods during which he was absent without leave from his unit resulting in the accumulation of an extensive amount of lost time.

3.  In his application to the Board, the applicant freely admits that the bad conduct was entirely his own fault and that his bad conduct was related to the intemperate use of alcohol.  The applicant also states that he has accomplished great personal goals and itemized these accomplishments; however, he provided no documentary evidence in corroboration.

4.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017044



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017044



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1