IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090001657 


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 to an honorable discharge.

2.  The applicant states that his mother was ill.

3.  The applicant provides no additional documentary evidence 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 records show he enlisted in the Regular Army (RA) on 19 October 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (cannon crewman).  He was promoted to pay grade E-3 on 1 September 1984, which is the highest grade he held during his tenure of service.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  Available evidence shows the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 October 1985 for being absent without leave (AWOL) during the period 10 August through 11 September 1985.

5.  Records show the applicant was convicted by a special court-martial, pursuant to his plea, for being AWOL from on or about 16 October 1985 through 9 January 1986.  Headquarters, 9th Infantry Division (Motorized), Special Court-Martial Order Number 6, dated 14 March 1986, shows the applicant's sentence to confinement for 5 months was approved and ordered executed.

6.  On 15 September 1986, the applicant was convicted by a special court-martial, pursuant to his pleas of guilty, for being AWOL on three occasions during the periods of 23 through 28 May 1986, 3 through 5 June 1986, and 6 June through 15 July 1986.  Headquarters, 9th Infantry Division (Motorized), Special Court-Martial Order Number 24, dated 17 October 1986 shows the applicant's sentence as forfeiture of $425.00 pay per month for 4 months, confinement for 4 months, and discharge from the service with a bad conduct discharge, adjudged on 15 September 1986.  The convening authority approved the sentence.  On 11 December 1986, the sentence was affirmed by the U.S. Army Court of Military Review.

7.  Department of the Army, United States Army Correctional Activity, Special Court-Martial Order Number 96, dated 3 June 1987 shows so much of the sentence to a bad conduct discharge, confinement for 4 months, and forfeiture of $425.00 pay per month for 4 months adjudged on 15 September 1986, had been affirmed.  It further shows that the bad conduct discharge was to be executed and noted that the part of the sentence extending to confinement had been served.

8.  On 15 June 1987, the applicant was discharged accordingly under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he completed 2 years, 7 months, and 7 days of active military service and had 380 days of lost time due to AWOL and confinement.  Item 24 (Character of Service) of this form shows the entry "Bad Conduct."

9.  There is no evidence the applicant applied to the Army Discahrge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

10.  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.  

11.  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.

12.  Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP for being AWOL for 33 days.  He was convicted by two special courts-martial for being AWOL on a total of four occasions for a combined total of 132 days.

2.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  Further, the applicant's discharge accurately reflects his overall record of service.  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.

3.  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 the applicant was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.

4.  The applicant has not submitted any evidence to show his mother was ill when he went AWOL.  However, even if he did, it would not form the basis to upgrade his discharge.  The Army has policies and procedures to deal with hardships, including compassionate reassignments and hardship discharges.

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

6.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20090001657



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ABCMR Record of Proceedings (cont)                                         AR20090001657



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