IN THE CASE OF:	

		BOARD DATE:	1 October 2009    

		DOCKET NUMBER:  AR20090000141 


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 bad conduct discharge be upgraded to an honorable or general discharge. 

2.  The applicant essentially requests that his discharge be upgraded so he can be allowed to move on with his life and states that he has lived in disgrace and shame for over 20 years with no ability to secure any gainful employment.  He also states that he was only 18 years old at the time of his offenses, and he contends that all of the charges were circumstantial.  Additionally, he claims that he did not believe at the time that his discharge would haunt him, but the years have proven it to be true.  Further, he claims that with the exception of trouble immediately after his discharge, he has cleaned up his life and tried to be a productive member of society, and he hopes he will be forgiven and allowed an opportunity to finally put his past behind him.

3.  The applicant provides his 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 military records show that he enlisted in the Regular Army on 20 July 1983.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewman).  He then departed for a tour in Germany on 7 November 1983.  

3.  On or about 13 December 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order by bringing alcohol into his troop billeting area and for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $130.00 pay, 14 days of extra duty, and 14 days of restriction.

4.  On 21 September 1984, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $150.00 and extra duty for 14 days.

5.  On 29 November 1984, the applicant was convicted by a general court-martial for wrongfully distributing hashish to another Soldier on or about 8 September 1984 and assaulting the same Soldier on or about 10 October 1984.  He was sentenced to a reduction in rank and pay grade from private first class/E-3 to private/E-1, a forfeiture of all pay and allowances, confinement for 3 years, and a bad conduct discharge.  He was placed in confinement at the United States Army Correctional Facility in Mannheim, Germany on that date as well.  On 5 January 1985, only so much of the applicant's sentence that provided for a forfeiture of all pay and allowances, confinement for 2 years, and a bad conduct discharge was approved and ordered to be executed.  On 10 January 1985, he was reassigned to the United States Army Correctional Activity at Fort Riley, Kansas.  

6.  On 3 April 1985, the United States Army Court of Military Review affirmed the findings of guilty against the applicant and his sentence.

7.  On or about 28 July 1986, the applicant was released from confinement, and on 29 July 1986 the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 shows that he received a bad conduct discharge.  Item 28 (Narrative Reason for Separation) of this same document has an entry "As a result of court-martial."

8.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

9.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

10.  Paragraph 3-7b of the same regulation also 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 bad conduct discharge should be upgraded to an honorable or general discharge. 

2.  The applicant's contention that it has been over 20 years since his discharge was noted; however, there has never been a provision of regulation which provides that a discharge would be upgraded after a certain amount of time, and the ABCMR does not upgrade discharges based solely on the passage of time.

3.  Additionally, the applicant's contention regarding his post-service conduct was also considered; however, good post-service conduct alone is not a sufficient basis for upgrading a discharge.

4.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for an offense of the UCMJ shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Additionally, he twice received NJP prior to his court-martial conviction.

5.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting relief to the applicant.

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)                                         AR20090000141



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ABCMR Record of Proceedings (cont)                                         AR20090000141



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