IN THE CASE OF:	  

		BOARD DATE:	        21 MAY 2009

		DOCKET NUMBER:  AR20090001831 


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 (BCD) be upgraded.

2.  The applicant states that:

	a.  he was not guilty and deserved less punishment; 

	b.  at that time his peers even stated that a court-martial was too severe for the charges; 

	c.  he had 12 years of service and his trial lawyer defense was weak; and 

	d.  since his discharge he has led a good life, he is a good husband and father, and he has had a good career.

3.  The applicant provides:

	a.  three letters of support from his former platoon leader, first sergeant, and commander, with dates 11 April 1991 and 15 April 1991;

	b.  a McDonald's "Crew Person of the Month" certificate, dated November 1992;

	c.  a one-page email message from Winn Dixie, dated 6 November 2004; 

	d.  a Letter of Recommendation, dated 12 June 2006;
	e.  a Winn Dixie letter of employment, dated 25 October 2006;

	f.  an Office of the Sheriff, Jacksonville, Florida, Criminal Background Check, dated 17 October 2008;

	g.  an 11-page Department of Veterans Affairs (VA), Claim File Number 263471474, dated 10 November 2008; 

	h.  a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs), dated 8 November 2008;
	
	i.  a VA Form 21-4138 (Statement in Support of Claim), dated 8 November 2008; and 

	j.  an undated 10-page Winn Dixie Management Survey Results.

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 (RA) on 5 October 1977.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).  

3.  The applicant was honorably released from active duty on 4 October 1981 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  



4.  The applicant enlisted in the RA on 21 July 1983 and was honorably discharged on 22 May 1986.  He enlisted in the RA on 27 June 1988 and was promoted to the rank and grade of Staff Sergeant (SSG)/E-6 on 1 January 1989.

5.  On or about 2 April 1991, the applicant was convicted, contrary to his pleas, by a general court-martial, of three specifications of indecent language.  His sentence consisted of a reduction to the grade of private/pay grade E-1, confinement for six months, and a BCD.  

6.  The applicant provided three letters of support from his former platoon leader, first sergeant, and commander, with dates 11 April 1991 and 15 April 1991.  The authors all stated that the applicant was devoted to the training and welfare of the anti-tank platoon.  The authors stated that they supported the applicant's request for clemency and that the applicant's punishment was too severe.  

7.  On 31 October 1991, the U.S. Army Court of Military Review (USACMR) affirmed the approved findings and the sentence.

8.  Headquarters, U.S. Army Armor Center and Fort Knox General Court-Martial Order Number 54, dated 29 April 1992, directed that the bad conduct discharge be executed.

9.  On 15 May 1992, the applicant was discharged from the Army with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 
635-200 (Personnel Separations), by reason of court-martial.  He completed 
3 years, 5 months, and 25 days of creditable active service on his last enlistment. The applicant completed a total of 10 years, 3 months, and 27 days of creditable active service with 144 days of time lost (confinement).

10.  The applicant provided a McDonald's "Crew Person of the Month" certificate, dated November 1992, recognizing him for exhibiting outstanding service, winning attitude, and overall superior performance.

11.  The applicant provided a one-page email message from Winn Dixie, dated 
6 November 2004, recognizing him for providing courtesy and professional service.

12.  The applicant provided a letter of recommendation, dated 12 June 2006, from a client who recommended the applicant's lawn service.

13.  The applicant provided an 11-page VA claim, dated 10 November 2008, for increased compensation based on individual unemployability.

14.  The Manual for Courts-Martial provides the maximum punishment for violations of Article 134 (indecent or insulting language): 1) Discharge: Bad Conduct Discharge, 2) Forfeiture: all pay and allowances; and 3) Confinement: 6 months.   

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

16.  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.

17.  In accordance with Title 10 of the U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 evidence of record confirms 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.

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.



3.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his rank at the time, it is determined that his service and post service are not sufficiently meritorious or mitigating to warrant the relief requested.

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)                                         AR20090001831





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001831



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1