IN THE CASE OF:	  

		BOARD DATE:	       27 AUGUST 2009

		DOCKET NUMBER:  AR20090004837 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states that he was young at the time and trying to find himself and get an understanding of life.  He adds that his commander was discharged for corruption and therefore his discharge should be upgraded.  

3.  The applicant did not provide any additional documentary evidence in support of his request.  

4.  On 17 June 2009, the applicant submitted a self-authored request in which he stated that he requested a personal appearance.

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 was born on 17 March 1970 and enlisted in the Regular Army at 18 years of age for a period of 4 years on 12 July 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13E (Cannon Fire Direction Specialist).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  On 13 February 1990, while at Fort Drum, NY, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty on or about 8 February 1990 and failing to obey an order on or about 15 February 1991.  His punishment consisted of a forfeiture of $207.00 pay ($107.00 suspended until 13 May 1990), a reduction to private (PV2)/E-2 (suspended until 13 May 1990), and 14 days of extra duty.

4.  On 29 May 1991, court-martial charges were preferred against the applicant for various specifications including wrongfully failing to store a firearm, wrongfully consuming alcohol while on duty, operating a motor vehicle while drunk, assault against various individuals, and wrongfully communicating a threat.  He was subsequently convicted by Summary Court-Martial and sentenced to a reduction to private (PVT)/E-1, a forfeiture of $502.00 pay, and 30 days confinement. 

5.  On 13 February 1992, the applicant pleaded guilty at a General Court-Martial at Fort Drum, NY, to one specification of wrongfully possessing some amount of marijuana on or about 24 November 1991; one specification of assaulting another Soldier on or about 24 November 1991; one specification of wrongfully having an unregistered shotgun stored in his barracks room on or about 26 November 1991; and one specification of assaulting another Soldier by pointing at him an unloaded firearm.  The Court sentenced him to confinement for 15 months, a forfeiture of all pay and allowances, and a bad conduct discharge.

6.  On 30 April 1992, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On an unknown date in 1992, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  However, on 16 September 1992, the U.S. Court of Military Appeals for the Armed Forces requested the final action in the applicant's case be withheld pending a petition for a grant of review.

8.  On 30 November 1992, the U.S. Court of Military Appeals for the Armed Forces granted the applicant's petition for review.  The details of that review are not available for review with this case.  

9.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 128, dated 4 May 1994, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

10.  The applicant was discharged from the Army on 16 June 1994.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with a bad conduct discharge.  This form further shows he completed a total of 4 years, 8 months, and 17 days of creditable military service and he had 445 days of lost time.

11.  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.  

12.  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.

13.  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 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 contends that his bad conduct discharge should be upgraded.

2.  The available evidence shows the applicant was 18 years of age at the time of enlistment and nearly 22 years of age at the time he committed his offenses.  There is no evidence available to substantiate that the applicant’s offenses were a result of his age.  Additionally, there is no evidence available that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation and there is no evidence that the applicant's commander engaged in misconduct.  

3.  The evidence of record shows that the applicant’s trial by General Court-Martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which he was convicted.  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.

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case

5.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade his discharge to either an honorable or a general discharge.

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)                                         AR20090004837



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ABCMR Record of Proceedings (cont)                                         AR20090004837



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