IN THE CASE OF:	 

		BOARD DATE:	       5 SEPTEMBER 2009

		DOCKET NUMBER:  AR20080017155 


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 (BCD) be upgraded.  

2.  The applicant states that he was injured while he was in the service from 1979 to 1983.  This [injury] has caused him to be disabled and hampered his life.  He states he is partially paralyzed, unable to work, and has problems with his discharge.  He claims, in effect, that he was not the same after the injury, which caused him to make bad decisions and to act immaturely.  Now that he is on medication and seeing doctors, his life is turning around but he still is having problems.   

3.  The applicant provides a statement from a "Claims Folder" and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.  

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 Regular Army on 31 August 1979.  At the completion of one station unit training (OSUT) at Fort Gordon, GA, he was awarded military occupational specialty (MOS) 05C (radio teletype operator).  While at Fort Gordon, he accepted nonjudicial punishment (NJP) proceedings under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully communicating a threat to two Soldiers.  During his tenure of service, his highest rank/grade held was private (PV2)/E-2.

3.  He further accepted NJP proceedings under Article 15, UCMJ on 11 January 1980, 7 May 1980, 10 June 1980, and 17 September 1980 for the following offenses: (1) wrongful possession of one ounce, more or less, of marijuana; (2) failure to obey a lawful order issued by the brigade commander; (3) willfully and unlawfully alter a public record; and (4) failure to obey a lawful order issued by a lieutenant colonel.

4.  He was confined by civilian authorities from 17 October 1980 to 18 October 1980; from 9 December 1980 to 12 December 1980; and from 9 January 1981 to 3 February 1981.  On 3 February 1981, he was released to military authorities.  

5.  On 9 March 1981, the applicant was found guilty, contrary to his pleas, by a special court-martial of willfully and wrongfully damaging, by striking with a metal folding chair, a 1978 model Buick Regal, the property of a Sergeant, the amount of said damage being about $719.00; causing a disorder by wrongfully shouting profanity and engaging in a fight with several persons who were present in the Headquarters and Headquarters Battery orderly room; and committing an offense upon a sergeant who was then in the execution of his office, by striking him with a metal chair.  He was sentenced to confinement at hard labor for four months, forfeiture of $300.00 pay per month for four months, reduction to private (PV1), E-1, and to be discharged from the service with a BCD.  On 28 May 1981, the convening authority approved the sentence.  Pending completion of appellate review by the U.S. Army Court of Military Review, the applicant was to be confined in the Area Confinement Facility, Fort Sill, or elsewhere as competent authority may direct.



6.  The applicant was subsequently confined by military authorities until 18 June 1981.

7.  On 31 December 1981, the U.S. Army Court of Military Review corrected Special Court-Martial Order Number 69, Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 28 May 1981, by deleting from Specifications 1 and 2 of Charge IV the word "offense" and substituting the word "assault."

8.  The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 16 May 1983.

9.  The applicant was discharged on 9 June 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, section IV, as a result of court-martial.  He completed 2 years, 10 months, and
9 days of creditable active service with 335 days of lost time due to military and civilian confinement.

10.  The applicant provided a document (Evaluation of the Evidence) which states "After a thorough evaluation of the entire record, I have concluded that the claimant is disabled based on his physical and mental impairments alone, thus his drug and alcohol abuse are not material."  

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  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 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.

13.  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.  

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 the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding the injury he incurred while serving on active duty are noted.  However, he has provided no evidence other than his 
self-authored statement that the extenuating circumstances regarding his injury was the reason he committed the offenses which led to his BCD.  

2.  It is noted that the 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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant’s record of service included five Article 15s, one special 
court-martial conviction, and confinement by military and civilian authorities for an extended period.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable 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)                                         AR20080017155



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ABCMR Record of Proceedings (cont)                                         AR20080017155



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