IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20090002928 


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 (BCD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was responsible for the misconduct that led to his court-martial and BCD; however, he has since turned his life around. He states that he is requesting his BCD be upgraded to a GD in order for him to gain employment at the local Veterans Nursing Home to get back on his feet and provide for his wife and children.

3.  The applicant provides the following documents in support of his application:  Virginia Drivers License; Social Security Card; Voter’s Registration Card; State of West Virginia Nurse Aide Card; Army Review Boards Agency-St. Louis letter, dated 19 October 2007; DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated 12 December 2007; DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 4 May 1984; Department of Health and Human Resources letter, dated 22 August 2005; and third-party letters of support.

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 record shows he enlisted in the Regular Army and entered active duty on 5 January 1981.  He was trained in, awarded, and served in military occupational specialty 13B (Cannon Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he attained the rank of specialist four/E-4 on 5 November 1982 and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private (PV1)/E-1 on 13 January 1983.

4.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 January 1983 for failing to obey a lawful order.  His punishment was a reduction to PV1.

5.  On 12 April 1983, a general court martial (GCM) found the applicant guilty pursuant to his plea of violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing an assault upon another Soldier by striking him in the head with a bottle and his closed fists with a means likely to produce grievous bodily harm.  The resultant sentence imposed by the military judge was a BCD, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and reduction to PV1.

6.  On 12 May 1983, in Headquarters, 1st Armored Division, GCM Order Number 059, the GCM convening authority approved only that portion of the sentence that provided for a BCD, confinement at hard labor for 18 months, and forfeiture of all pay and allowances; and he directed that all but the BCD portion of the sentence be duly executed.

7.  On 12 October 1983, the United States Army Court of Military Review examined the applicant's record of trial, found it to be legally sufficient to support the findings of guilty and the sentence, and affirmed the applicant's conviction.

8.  On 24 January 1984, GCM Order Number 35, issued by United States Army Correctional Activity, Fort Riley, Kansas, directed that Article 71c of the UCMJ having been complied with, that the BCD portion of the sentence be executed, and on 4 May 1984 the applicant was discharged accordingly.
9.  The DD Form 214 issued to the applicant on the date of his discharge shows he was separated under the provisions of chapter 3, Section IV, Army Regulation 635-200 (Personnel Separations), by reason of court-martial and that he received a BCD.  It also shows that at the time of his discharge, he had completed a total of 2 years, 3 months, and 2 days of creditable active military service.

10.  The applicant provides four letters of support from individuals who attest to his excellent character and support his request for an upgrade of his BCD.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It provides, in pertinent part, that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Paragraph 3-7a of the separations regulation 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.

13.  Paragraph 3-7b of the separations regulation 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.

14.  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’s contention that although he knows he messed up, his BCD should be upgraded to a GD based on his post-service conduct and the evidence he provides has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows that the applicant’s trial by court-martial that resulted in his BCD 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.

3.  The record further confirms that the applicant was only discharged after completion of the entire appellate process and only after his sentence was affirmed by the appropriate appellate court.

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.  The applicant's post-service conduct, as evidenced by the third-party statements he provides, is noteworthy.  However, absent any evidence of service of valor or significant achievement, this factor alone is not sufficiently mitigating to support clemency.  Given his extensive disciplinary history and seriousness of the offense that resulted in his GCM conviction and BCD, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

6.  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)                                         AR20090002928



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ABCMR Record of Proceedings (cont)                                         AR20090002928



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