IN THE CASE OF:	    

		BOARD DATE:	        19 March 2009

		DOCKET NUMBER:   AR20080019052 


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, in effect, his discharge was too harsh and he needs medical care and employment.

3.  The applicant provides copies of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 13 June 1981; General Court-Martial Order Number 954, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, dated
14 December 1982; General Court-Martial Order Number 170, same headquarters, dated 15 March 1983;  and a DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court Martial Conviction) 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 enlisted in the Regular Army on 27 November 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 13 June 1981, the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his unit, without authority, from 28 May 1981 to 9 June 1981.  The punishment consisted of reduction to the grade of private (PV2)/E-2 and restriction for 14 days.

4.  A DA Form 4187 (Personnel Action), dated 19 February 1982, shows the applicant departed absent without leave (AWOL) on 17 February 1982.  A subsequent DA Form 4187, dated 26 February 1982, shows the applicant was apprehended by military authorities at Fort Benning, GA on 24 February 1982.  This form further shows the applicant was placed in pre-trial confinement.

5.  On 4 May 1982, the applicant was convicted by a General Court-Martial for being AWOL from 18 February 1982 to 24 February 1982 and for stealing another Soldier's privately owned vehicle.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for one year, and a dishonorable discharge from the U.S. Army.  On 18 July 1982, the convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

6.  On 8 October 1982, the U. S. Army Court of Military Review affirmed the findings of guilty and the applicant's sentence.

7.  On 23 March 1983, the applicant was discharged, pursuant to his conviction by court-martial, with a dishonorable discharge after completing 2 years, 
1 month, and 29 days of creditable active service with 421 days of lost time due to AWOL and confinement.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

9.  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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade has been carefully reviewed and determined to be without merit.

2.  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 indiscipline includes punishment under the provisions of Article 15, UCMJ, for being AWOL; and a conviction by a general court-martial for being AWOL and stealing another Soldier's privately owned vehicle.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or medical benefits.


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)                                         AR20080019052



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ABCMR Record of Proceedings (cont)                                         AR20080019052



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