IN THE CASE OF:	  

		BOARD DATE:	       1 September 2009

		DOCKET NUMBER:  AR20090004674 


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 be upgraded.

2.  The applicant states that he became an alcoholic during his term of service and he was unaware of the service the military had to offer for his addiction.  This would have helped him in his duties if assistance was offered.

3.  The applicant provides no additional documentation in support of this case.

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 4 November 1975 and he successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).

3.  On 28 May 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.

4.  On 12 December 1976, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a noncommissioned officer.

5.  On 10 January 1978, the applicant was convicted, contrary to his pleas, by a special court-martial of three specifications of committing an assault, of which one specification was committed by a means likely to inflict grievous bodily harm. His sentence consisted of a bad conduct discharge.

6.  On 2 May 1978, the applicant accepted NJP under Article 15, UCMJ for being drunk and disorderly in a public place.

7.  On 25 September 1978, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  On 20 December 1978, the applicant was discharged with a Bad Conduct Discharge Certificate under the provisions of chapter 11 of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel) by reason of court-martial.  He had completed 3 years, 1 month, and 17 days of creditable active military service with no lost time.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 provides policy for the separation of members with a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  It states that discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence.

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.  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 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 trial by court-martial was warranted by the gravity of the offenses for which he was charged and convicted.  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.  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)                                         AR20090004674



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ABCMR Record of Proceedings (cont)                                         AR20090004674



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