IN THE CASE OF:	  

		BOARD DATE:	       5 February 2009

		DOCKET NUMBER:  AR20080018160 


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 1984 bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he wishes to pursue his education, study law and become a productive, well educated paralegal.  He states he wants to learn more about the United States Constitution, government, and civil rights.  He states he was immature and nonresponsive to authority.

3.  The applicant provides no evidence in support of his request.

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 4 March 1982.  He was 20 years old and a high school graduate.  His enlistment option included an assignment to Korea.

3.  The applicant successfully completed basic combat and advanced individual training and in July 1982 was assigned to a supply and transportation battalion in Korea for duty as a motor transport operator in military occupational specialty (MOS) 64C (Motor Transport Operator).  In September 1982 he was promoted to the rank/grade of Private (PV2)/E-2.  On 19 January 1983 the unit commander recommended the applicant be advanced to the rank/grade of Private First Class (PFC)/E-3 with a waiver for time in service and time in grade.  The promotion was effective on 1 February 1983.

4.  On 19 February 1983 the applicant departed AWOL (absent without leave) and on 21 March 1983 he was dropped from the rolls of the Army.  On 3 June 1983 he was apprehended at a road check point in Korea and returned to military control. 

5.  A Department of the Army (DA) Form 5112-R (Checklist for Pretrial Confinement), contained in the applicant’s file, notes the applicant was deeply involved with black-market activities and that at the time of apprehension he was in possession of another Soldier’s identification (ID) card.

6.  On 8 July 1983 the applicant was tried and found guilty pursuant to his pleas by a special court-martial of AWOL, wrongful use of another’s ID card, and wrongful possession of another’s ID card with intent to deceive.  Headquarters, 2nd Infantry Division Special Court-Martial Order Number 70, dated 4 August 1983 shows he was sentenced to a bad conduct discharge, confinement at hard labor for 90 days, reduction to the rank/grade of Private (PV1)/E-1, and forfeiture of $382.00 pay per month for 3 months.  The convening authority approved the sentence.  The applicant was subsequently confined at the United States Army Correctional Activity at Fort Riley, Kansas until 18 September 1983. Subsequently he was placed on involuntary excess leave pending disposition of appellate review.

7.  On 22 November 1983 the United States Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the adjudged sentence was affirmed.



8.  On 26 April 1984 United States Army Correctional Activity, Fort Riley published Special Court-Martial Order Number 156.  It indicated that the sentence to a bad conduct discharge, confinement at hard labor for 90 days, forfeiture of $382.00 pay per month for 3 months, and reduction to private (PV1)/E-1, as promulgated in Special Court-Martial Orders Number 70 was finally affirmed.  It further stated that Article 71(c) having been complied with, the bad conduct discharge would be executed and that that portion of the sentence pertaining to confinement had been served.

9.  Accordingly, on 10 May 1984, the applicant was discharged from the Army with a bad conduct discharge, in the rank of PV1, pursuant to the sentence of a special court-martial.  He completed 1 year, 7 months, and 5 days of creditable active service.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

11.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

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 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.






DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s argument that he was immature and nonresponsive to authority is not supported by the evidence of record.  Rather it is noted the applicant was 20 years old when he entered active duty and nearly 22 by the time he was apprehended in June 1983.  He was a high school graduate, a successful graduate of basic combat and advanced individual training and recommended by his unit commander in Korea for early promotion to the rank of PFC.  Such evidence suggests the applicant was capable of honorable conduct.

3.  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.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The applicant’s desire to pursue his education is noted.  However, it is not sufficient to mitigate the offenses committed during his military service.

5.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

6.  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.




      __________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)                                         AR20080018160



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ABCMR Record of Proceedings (cont)                                         AR20080018160



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