DOCKET NUMBER:  AR20090004101 


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 to a general discharge.

2.  The applicant states that he had demonstrated exemplary performance prior to going absent without leave (AWOL).  He had many convoluted issues to deal with at home including several deaths in his family.  He believes that his punishments were disproportional to his offenses.  He believed that his discharge would automatically be reviewed 3 years after his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 records show that he was inducted into the Army of the United States on 25 March 1969 and was awarded the military occupational specialty of Pershing missile crewman.

3.  On 30 September 1969, the applicant was convicted, pursuant to his plea, by a special court-martial of being AWOL from on or about 2 June 1969 to on or about 27 August 1969.

4.  On 14 October 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty on or about 12 October 1969.

5.  On 25 January 1971, the applicant was convicted by a general court-martial of being AWOL from on or about 20 October 1969 to on or about 15 December 1970.  His sentence consisted of a BCD, a forfeiture of all pay and allowances, and confinement at hard labor for 9 months.  In the processing of the record of trial, the Staff Judge Advocate (SJA) reviewed the case.  In its review the SJA stated that the applicant's character of service had been excellent.  The SJA also repeated the applicant's defense counsel's narrative about the hardships the applicant had and was experiencing.  After the review by the SJA, the convening authority approved so much of the sentence as consisted of a BCD, confinement for 6 months, and a forfeiture of $40.00 a month for 6 months.

6.  On 17 March 1971, the unexecuted portion of the sentence to confinement at hard labor for "4" [sic] months was remitted.  On 29 March 1971, a second general court-martial order was published correcting the wording in the first order remitting the unexecuted portion of the sentence from reading 4 months of confinement to 6 months of confinement.

7.  On 7 May 1971, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence of the applicant's court-martial.

8.  On 18 May 1971, the applicant's BCD was ordered to be executed.

9.  Accordingly, on 9 June 1971, the applicant was given a BCD.

10.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  This regulation states 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The SJA review of the applicant's case after his general court-martial conviction confirms the applicant's contention that he had exemplary performance prior to his going AWOL.

2.  However, the applicant's contention that his punishments were disproportional to his offenses is not accepted.  The applicant was AWOL for almost 1 year and 2 months.  This is serious misconduct which certainly warranted a BCD.  In addition, he had previous 2-month period of AWOL.

3.  The applicant's statement that he believed that his discharge would automatically be reviewed 3 years after his discharge is noted.  However, he did not submit any documents which show that he was told this and the Army does not have, and has never had, a policy to upgrade a discharge based solely on the passage of time.

4.  The applicant has not submitted anything to the Board concerning his duty performance and home life which was not considered prior to his general court-martial sentence being approved.  While the applicant had matters of mitigation, he was convicted of committing a serious offense.  The fact that the applicant had progressive punishment in the form of a special court-martial and NJP would have also been considered during his trial and subsequent review by the convening authority.

5.  As such, there is no basis for granting the applicant's request.

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)                                         AR20090004101





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ABCMR Record of Proceedings (cont)                                         AR20090004101



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