IN THE CASE OF:	  

		BOARD DATE:	  	   7 May 2009

		DOCKET NUMBER:  AR20090001615 


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, upgrade of his bad conduct discharge (BCD).

2.  The applicant states, in effect, he is now 56 years old, has been married for 15 years, and employed in his job for 10 years.  He further states he does not drink or do drugs.  He adds that he was young and did not understand the full impact of his actions at the time.

3.  The applicant provides no additional documentary evidence.

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 personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 25 April 1974 and entered the Delayed Entry Program (DEP).  Records show the applicant’s date of birth is
24 November 1952.  He was discharged from the DEP on 29 April 1974 and enlisted in the Regular Army (RA) for a period of 3 years on 30 April 1974.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 76Y (Armorer/Unit Supply Specialist).  

3.  The applicant's military personnel records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty this period on
30 April 1974 and was honorably discharged on 30 January 1977 for the purpose of immediate reenlistment in the RA.  At the time he had completed 2 years,
9 months, and 1 day of net active service this period and 5 days of total prior inactive service.

4.  The applicant’s military personnel records show he reenlisted in the RA for a period of 4 years on 31 January 1977.  He completed the Recovery/Evacuation Specialist course and was awarded MOS 63F (Recovery/Evacuation Specialist) as his primary MOS on 17 June 1977.

5.  The applicant’s military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated
9 September 1977.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
1800 hours, 22 August 1977, at the Post Exchange Gas Station, Fort Stewart, Georgia, behaving himself with disrespect toward his superior commissioned officer by saying to him “All right, G__ D___ it, find it out” when the applicant was told that the officer could find out his name, in violation of Article 89, UCMJ; and for, on or about 1800 hours, 22 August 1977, at Fort Stewart, violating a lawful general regulation by not wearing his fatigue shirt and wearing his fatigue trousers and belt undone, in violation of Article 92, UCMJ.  His punishment consisted of 14 days extra duty.

6.  The applicant’s military personnel records contain a DA Form 2627, dated
14 December 1977.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about
0800 hours, 6 November 1977, without authority, failing to go at the time prescribed to this appointed place of duty, to wit:  Charge of Quarters for Company A, 2nd Battalion, 70th Armor, Fort Stewart, in violation of Article 86, UCMJ.  His punishment consisted of forfeiture of $76.88.



7.  The applicant’s military personnel records contain a DA Form 2627, dated
22 March 1978.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about, 1 March 1978, without authority, going from his appointed place of duty, to wit:  Company A, 2nd Battalion, 70th Armor, Fort Stewart, in violation of Article 86, UCMJ; and for, on or about 0820 hours, 9 March 1978, at Building 9928, Fort Stewart, being disrespectful in language toward his superior noncommissioned officer, who was then in the execution of his office, by saying to him “I might to (sic) to the motor pool” and “Get out of here and leave me alone,” or words to that effect, in violation of Article 91, UCMJ.  His punishment consisted of 14 days extra duty, 14 days restriction, and reduction to the grade of private first class (PFC)/E-3 (suspended for 90 days).  His records also contain a DA Form 2627, dated
21 April 1978, that shows the suspension of the punishment of reduction to E-3 imposed against the applicant was vacated by the company commander and the unexecuted portion of the punishment was ordered to be duly executed.

8.  The applicant’s military personnel records contain a copy of Headquarters, 2nd Brigade, 24th Infantry Division, Fort Stewart, Special Court-Martial Order Number 24, dated 30 August 1978, which documents the following charges, specifications, pleas, and findings:

     a.  Charge I, violation of the UCMJ, Article 91, with the Specification that the applicant, on or about 24 April 1978, at Fort Stewart, was disrespectful in language towards his superior noncommissioned officer, who was then in the execution of his office, by pointing his finger at him and saying, “I ain’t working for that sucker” or words to that effect;

     b.  Charge II, violation of the UCMJ, Article 117, with the Specification that the applicant did, on or about 12 April 1978, at Fort Stewart, Georgia, wrongfully use provoking words, to wit:  “You’re a w____ man’s n_____, an Uncle Tom.  You look b____ but you’re not, you’re a w____ man’s n_____.  Always running to the w____ man,” or words to the effect towards Corporal J_____ V______, U.S. Army; and

     c.  Charge III, violation of the UCMJ, Article 134, with the Specification that the applicant did on or about 13 April 1978, at Fort Stewart, wrongfully have in his possession some amount of marijuana.

     d.  The applicant pled guilty to Charge I and its Specification, not guilty to Charge II and its Specification, and guilty to Charge III and its Specification.  The applicant was found guilty of Charge I and its Specification, not guilty of Charge II and its Specification, and guilty of Charge III and its Specification.

     e.  On 22 June 1978, sentence was adjudged.  The applicant’s sentence was to be reduced to the pay grade of private (PV1)/E-1, to be confined at hard labor for 45 days, and to forfeit $50.00 pay per month for two months.  (No previous convictions considered.)

     f.  On 30 August 1978, the convening authority approved the sentence and ordered it duly executed, but that portion thereof adjudging forfeitures in excess of $50.00 pay per month for one month and confinement at hard labor in excess of one month was suspended for six months, at which time unless sooner vacated, the suspended portion of the sentence was to be remitted without further action.

9.  The applicant’s military personnel records contain a copy of Headquarters,
U.S. Army Training Center Engineer, Fort Leonard Wood, Missouri, Special Court-Martial Order Number 24, dated 6 November 1979, that shows the applicant was charged with violation of the UCMJ, Article 128, with the Specification that at the Second Floor Lounge, Headquarters Company Billets, Building 1731, 5th Battalion, 4th Training Brigade, U.S. Army Training Center Engineer, located within the boundaries of Fort Leonard Wood, a U.S. Army Installation, the applicant did, on or about 2030 hours, 7 August 1979, commit assault upon Specialist Four D____ A. N____, by striking him approximately five times with a pistol belt with clips and buckles on the head and arms, and did thereby inflict grievous bodily harm upon him, to wit:  a wound to the scalp requiring sutures and internal bleeding from an injury to the left upper arm.

     a.  This document shows the applicant entered a plea of guilty and was found guilty, except the words “approximately five times with a pistol belt with clips and buckles on the head and arms, and did thereby inflict grievous bodily harm upon him, to wit:  a wound to the scalp requiring sutures and internal bleeding from an injury to the left upper arm”; substituting therefor the words “on the head and arms with a means likely to produce grievous bodily harm, to wit:  a pistol belt with clips and buckles,” of the excepted words, Not Guilty, of the substituted words, Guilty.  Of the Charge:  Guilty.

     b.  On 5 October 1979, sentence was adjudged.  The applicant’s sentence was reduction to E-1, to forfeit $200.00 pay per month for four months, to be confined at hard labor for four months, and to be discharged from the service with a BCD.  (One previous conviction considered.)

     c.  On 6 November 1979, the convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for three months, forfeiture of $200.00 pay per month for four months, and reduction to the grade of 
E-1.  The unexecuted portion of the sentence to confinement at hard labor was remitted.  The convening authority also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

10.  The applicant’s military personnel records are absent any documentation issued by the U.S. Army Court of Military Review.

11.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Training Center Engineer, Fort Leonard Wood, Missouri, Special Court-Martial Order Number 12, dated 21 May 1980.  This document shows, in pertinent part, the applicant's sentence was affirmed pursuant to Article 66, UCMJ.  This document also shows that the provisions of Article 71(c) having been complied with, that portion of the sentence to confinement at hard labor that was not remitted having been served, the bad conduct discharge was ordered duly executed.

12.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 31 January 1977 and was discharged on 5 June 1980 with a BCD.  The DD Form 214 shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial (other) with Separation Code “JJD.”  At the time of his discharge the applicant had completed 3 years, 3 months, and
12 days of net active service this period.

13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

14.  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.

15.  Army Regulation 635-200, in effect at the time of the applicant's discharge, provided the authority for separation of enlisted Soldiers upon ETS; authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the 
Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 11 (Dishonorable and Bad Conduct Discharge) provides the authority for the issuance of a BCD.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  
It identifies the SPD code of “JJD” as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial, other.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  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, in effect, that his BCD should be upgraded because he was young and did not understand the full impact of his actions at the time; however, he is now older, a good husband, and also a responsible member of society.

2.  Records show that the applicant was 25 years of age at the time of his numerous acts of indiscipline and offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.
4.  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.  

5.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

6.  The applicant's contentions regarding his post-service conduct and personal responsibility were carefully considered.  However, good post-service conduct and personal responsibility alone is not a basis for upgrading a discharge.  

7.  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.  

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)                                         AR20090001615



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ABCMR Record of Proceedings (cont)                                         AR20090001615



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