IN THE CASE OF:	

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20090000771 


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 a discharge under honorable conditions.

2.  The applicant states, in effect, that it has been 15 years since his discharge and his characterization of service has negatively affected him both personally and professionally.  He further states, in effect, that during his enlistment period he was promoted to sergeant and recognized by his superiors for his outstanding performance of duties as a Patriot Missile System Operator and Mechanic.  Since his separation, he states he has earned an Associate's Degree in Electronics and Electrical Engineering Technology and held several well paying jobs.  

3.  The applicant provides the following documents in support of his application:

     a.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 14 May 1993;

     b.  a DD Form 214 with a separation effective date of 5 April 1984 and a characterization of service as honorable; 

     c.  Order Number 102-6, published by Headquarters, Delaware National Guard dated 24 May 1985 which shows he was honorably discharged from the Army National Guard;

     d.  NGB Form 22A (Correction to NGB Form 22) dated 18 October 1985;
     e.  NBG Form 22 (Report of Separation and Record of Service) dated 27 May 1985;

     f.  VA Form 26-8320 (Department of Veterans Affairs Certificate of Eligibility) dated 11 May 1998; and

     g.  Delaware Technical & Community College degree completion certificate dated 5 August 1999 with college transcript, and a personal statement. 

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 failur 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 initially enlisted in the Army National Guard in Puerto Rico on 29 August 1983.  He successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He transferred to the Delaware Army National Guard due to personal relocation.  He voluntarily separated from the Delaware Army National Guard on 27 May 1985 for enlistment in the Army Reserve. 

3.  On 21 October 1985, he enlisted in the Regular Army for 4 years.  He successfully completed advanced individual training and was awarded MOS 27T (Patriot Operator and Systems Mechanic).  The highest rank he achieved while serving on active duty was sergeant/pay grade E-5.

4.  The applicant was assigned to Headquarters and Headquarters Battery, 6th Battalion, 43rd Air Defense Artillery in Germany on 8 January 1990.

5.  On 14 September 1990, the applicant pleaded guilty and was found guilty at a general court-martial for resisting apprehension, 2 specifications of damaging military property, damaging private property, disobeying a lawful order of a superior noncommissioned officer, and disrespectful in nature to a superior noncommissioned officer.  He was also found guilty of assault, contrary to his plea.  His sentence consisted of reduction to private/pay grade E-1, forfeiture of $400.00 pay for 18 months, confinement for 18 months, and a bad conduct discharge.  

6.  Headquarters, 1st Armored Division, APO New York, General Court-Martial Order Number 101 dated 21 December 1990 approved the sentence and executed the sentence except for the bad conduct discharge.  

7.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas General Court-Martial Order Number 181 dated 20 March 1993 indicated the applicant's sentence had been affirmed and ordered the discharge sentence to be executed.

8.  On 14 May 1993, the applicant's was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Management System) based on his conviction by a court-martial.  His service was characterized as a bad conduct discharge.  His net active service was 6 years and 24 days with 1 year, 6 months, and 29 days of time lost during this period of service from 21 October 1985 to 14 May 1993.

9.  Army Regulation 635-200 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.  It 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 affirmed sentence ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his characterization of service negatively affects him both personally and professionally and that his discharge should be upgraded.  He further contends he holds an associate’s degree and has worked successfully since his separation. 

2.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial. 

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  Likewise, while the applicant's post-service conduct and achievements are commendable, they are insufficient to upgrade a properly issued discharge.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.  

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090000771





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ABCMR Record of Proceedings (cont)                                         AR20090000771



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