IN THE CASE OF:
BOARD DATE: 24 February 2009
DOCKET NUMBER: AR20080017320
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 discharge be upgraded.
2. The applicant states that he was wrongfully discharged. He adds that he "did not do all of the charges I was had against me."
3. The applicant provides his separation document, DD Form 214.
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 23 January 1977 and was awarded the military occupational specialty of armor crewman.
3. On 13 October 1977, the applicant was found guilty by a special court-martial of failure to obey a lawful order or general regulation; seven specifications of insubordinate conduct and disobeying a lawful order; three specifications of assault; disobeying a lawful command; destruction of private property of a value in excess of $100.00; and for communicating a threat.
4. The applicant was found not guilty of, or had charges dismissed, on eight specifications during his trial.
5. The special court-martial sentenced the applicant to a forfeiture of $250.00 a month for four months, confinement for four months, and a bad conduct discharge.
6. On 10 January 1978, the special court-martial's sentence was approved.
7. After the provisions of Article 71 had been complied with, on 19 September 1978 the applicant's BCD was ordered executed.
8. Accordingly, on 13 June 1979 the applicant was issued a Bad Conduct Discharge Certificate. He had 1 year, 10 months, and 16 days of creditable service, 185 days of lost time, and 506 days of excess leave.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. This regulation established policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.
10. 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.
11. 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 members 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. Whenever there is doubt, it is to be resolved in favor of the individual.
12. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant is correct in that he was not convicted of eight of the specifications preferred against him.
2. However, he was found guilty of 15 specifications of six charges preferred against him.
3. Being found guilty of 15 specifications of six charges certainly warranted a bad conduct discharge.
4. 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) AR20080017320
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ABCMR Record of Proceedings (cont) AR20080017320
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