IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080019000 


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 an honorable discharge.

2.  The applicant states, in effect, that his bad conduct discharge was unjust, he received frostbite in Germany, and he had a medical condition that required him to be stationed in a warm climate.  However, he was sent to Fort Bragg, North Carolina where winter temperatures were unbearable.  He states that he went absent without leave (AWOL), "left the cold," due to extreme pain and breathing problems after his leadership failed to comply with his frostbite-related medical restrictions.  He also states that he was offered a medical discharge which he did not accept because he wanted to complete his obligation.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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's records show he enlisted in the Regular Army on 
24 July 1979.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of cannon crewman.  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

3.  The available records do not show any significant acts of achievement or valor during his military service.

4.  The applicant's records show he served only 4 months in Germany and there is no evidence to explain why his tour was terminated.

5.  The applicant's medical records are not contained in the available records and he did not provide any. 

6.  The available evidence shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on six occasions between 3 December 1980 and 30 September 1981 for absenting himself from his place of duty, wrongfully possessing some amount of marijuana, disobeying a lawful order, wrongfully using provoking words, failing to pay a just debt, and failing to go to his appointed place of duty.

7.  On 21 December 1981, the applicant was convicted by a special court-martial, pursuant to his pleas, for being AWOL during the period 20-28 October 1981 and for four specifications of writing checks knowing there were insufficient funds in his checking account (intent to defraud).  He was sentenced to be discharged from the service with a bad conduct discharge, to a forfeiture of $150.00 pay per month for 6 months, and confinement at hard labor for 5 months. 

8.  On 25 January 1982, only so much of the applicant's sentence as provided for a bad conduct discharge, confinement at hard labor for 3 months, and a forfeiture of $150.00 pay per month for 6 months was approved by the convening authority.

9.  On 11 August 1982, the applicant's special court-martial sentence, having been affirmed, was ordered executed.  On 15 September 1982, the applicant was discharged with a bad conduct discharge, pursuant to his court-martial sentence.  He had completed 2 years, 9 months, and 2 days of creditable active service and he had 140 days of lost time.
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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes 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 the affirmed sentence ordered duly executed.

12.  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.  

13.  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 contends that he went AWOL due to extreme pain, breathing problems and his leadership's noncompliance with his medical restrictions associated with frostbite.  However, there is no evidence in the available records nor does the applicant provide any to show he had a medical condition that mitigated his misconduct.  While the applicant contends his situation was "unbearable" due to the cold weather, this does not mitigate his misconduct.

2.  The evidence shows the applicant's trial by special court-martial was warranted by the gravity of the offenses for which he was charged.  In the absence of evidence to the contrary, it is presumed that the conviction, appeal, and discharge proceedings were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant accepted NJP on six occasions for various offenses to include possessing marijuana, wrongfully using provoking words, failing to pay just a debt, and absenting himself from his place of duty.  He was also convicted by a special court-martial of being AWOL and for writing checks knowing there were insufficient funds in his account.  The applicant committed serious misconduct which certainly warranted a bad conduct discharge.

4.  Given the seriousness of the offenses for which the applicant was convicted, his record was not considered sufficiently meritorious to warrant clemency in his case.  

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)                                         AR20080019000



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ABCMR Record of Proceedings (cont)                                         AR20080019000



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