IN THE CASE OF:	  .

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20080019937 


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 an upgrade of his bad conduct discharge. 

2.  The applicant states that his discharge was based on one incident in 14 years of service with no other adverse action. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 December 1990; a self-authored letter, dated 28 November 2008; and two character reference letters, dated on various dates, in support of his request.

4.  On 11 March 2009, a letter was received from Mr. T****s W. S***r, a private counsel, inquiring about the status of the applicant's case.  Mr. S***r indicated that the applicant had not employed his office to represent him at that point. 

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 3 September 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 52D (Power-Generation Equipment Repairer).  He was honorably discharged on 12 March 1979 for the purpose of immediate reenlistment.

3.  The applicant’s records also show he executed a 5-year reenlistment in the Regular Army on 13 March 1979 followed by two 6-year reenlistments on 17 February 1984 and on 9 June 1988.  He was promoted to staff sergeant (SSG) on 2 January 1985 and sergeant first class (SFC) on 1 March 1989.  He also held MOS 88M (Motor Transport Operator) and was last assigned to the 2nd Transportation Company in Germany.  

4.  On 22 September 1979, the applicant pled guilty at a General Court-Martial to two specifications of failing to go at the time prescribed to his appointed place of duty on or about 27 July 1989 and on or about 11 August 1989; two specifications of being absent without leave (AWOL) during the periods on or about 27 July 1989 through on or about 28 July 1989 and on or about 12 August 1989 through on or about 3 September 1989; one specification of willfully disobeying a lawful command from a superior commissioned officer on or about 25 July 1989; and one specification of being disrespectful in deportment toward a superior noncommissioned officer on or about 7 August 1989.  He also pled not guilty to one specification of willfully disobeying a lawful command from a superior commissioned office on or about 19 July 1989.  The Court found him guilty of all the above specifications and sentenced him to confinement for 3 months, forfeiture of all pay and allowances, reduction to the grade of private (PV1)/E-1, and a bad conduct discharge.  The sentence was adjudged on 22 September 1989. 

5.  On 29 December 1989, the convening authority approved so much of the sentence as provides for confinement for 3 months, reduction to PV1/E-1, and a bad conduct discharge, and except for that part of the sentence extending to a bad conduct discharge, he ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

6.  On 8 August 1990, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.


7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 54, dated 12 December 1990, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

8.  The applicant was discharged from the Army on 26 December 1990.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed a total of 14 years and 22 days of creditable military service.  He also had 96 days of lost time. 

9.  The applicant submitted three character reference letters in support of his application as follows:

	a.  in his letter, dated 28 November 2008, the applicant states that he made a mistake by following his heart rather than his mind at the time, and that his awards and decorations during his military service speak for themselves; 

	b.  in a letter, dated 12 December 2008, a special education teacher comments on the applicant’s leadership ability, promptness, commitment, thoroughness, and willingness to assist others; 

	c.  in a letter, dated 8 December 2008, the owner of a trucking company comments on the applicant’s professional mannerism, on-time performance, pleasant demeanor, and cooperative attitude.  

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 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.  .

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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a Court-Martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20080019937



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ABCMR Record of Proceedings (cont)                                         AR20080019937



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