BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090005277 

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 fully honorable discharge (HD).

2.  The applicant states, in effect, that after returning to duty after serving time in Fort Leavenworth, Kansas, he was falsely accused of participating in a "blanket party."  He subsequently went absent without leave (AWOL) because he feared being wrongly sent to jail.  He claims that upon returning from AWOL, he was confined and scared into accepting a discharge or facing incarceration.

3.  The applicant provides a self-authored statement and a witness statement in support of his application.

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 he enlisted in the Regular Army and entered active duty on 27 March 1979.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms in item 18 (Appointments and Reductions) that he was promoted to private (PV2)/
E-2 on 27 September 1979 and that this was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 19 August 1980.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) of the applicant’s DA Form 2-1 shows he accrued 242 days of lost time during the following periods:  20 August 1979-13 September 1979 (AWOL), 19 February 1980-14 August 1980 (Confinement), and 6 December 1980-18 January 1981 (AWOL).

5.  A DA Form 2-2 (Insert Sheet to DA Form 2 Record of Court-Martial Conviction) shows that on 23 May 1980 the applicant pled guilty to aggravated assault on or about 17 February 1980 at a general court-martial (GCM).  The resultant sentence imposed by the military judge included confinement at hard labor for 7 months, forfeiture of $250.00 pay per month for 7 months, reduction to PV1, and a BCD.

6.  On 7 July 1980, the GCM convening authority approved the sentence with the exception of that portion that provided for the BCD, which was suspended for the period of confinement and 6 months thereafter.

7.  In GCM Order Number 24, dated 7 July 1980, the convening authority suspended the BCD for the period of confinement plus the 6 months after release from confinement, at which time it was to be remitted without further action.  GCM Order Number 208 issued on 15 August 1980 suspended the unexecuted portion to confinement at hard labor for 7 months of the applicant's sentence until 10 December 1980.  GCM Order Number 239, dated 1 October 1980, suspended the unexecuted portion of the forfeiture of $250.00 pay per month for 7 months of the applicant's sentence until 10 December 1980.

8.  On 27 October 1980, the U.S. Court of Military Review found the approved findings of guilty and the sentence correct in law and fact, and determined on the basis of the entire record that they approved and affirmed the findings of guilty and the sentence.

9.  The applicant's military personnel records jacket contains a DD Form 455 (Report of Proceedings to Vacate Suspension) that shows the applicant violated Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL during the period from 6 December 1980 through 19 January 1981, and that as a result the suspension of his GCM sentence to a BCD was vacated.

10.  The applicant submitted a sworn statement at that time in which he indicated that he was having problems at his unit and felt he was not accepted there because he came from the Retraining Brigade.  He also stated that he talked to his chain of command and because he received no help he went AWOL.  He also indicated he was having problems with his fiancée and that because his initial assignment following confinement was changed from Fort Bragg, North Carolina, to Fort Carson, Colorado, he could not afford to bring his fiancée and child with him.  As a result, he wanted out of the Army.

11.  On 26 January 1981, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

12.  On 3 February 1981, the applicant acknowledged that he was fully advised of his right to petition the U.S. Court of Military Appeals for a grant of review with respect to any matters of law in his case.  On 10 February 1981, he further indicated that having consulted with legally-qualified counsel and being informed that the affirmed sentence would become final unless he filed a petition, indicated his desire not to petition for or prosecute an appeal and requested for his convenience that the appropriate action be taken to finalize the affirmed sentence without further delay.

13.  On 19 June 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows that he was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations Enlisted Personnel), by reason of court-martial after completing a total of 1 year, 6 months, and 22 days of creditable active military service and accruing 242 days of time lost due to AWOL and confinement.

14.  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.

15.  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.

16.  Chapter 11 of Army Regulation 635-200, in effect at the time, provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

17.  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’s contention that his BCD should be upgraded because he only went AWOL because he was afraid of being incarcerated for something he did not do has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The suspension of his sentence that provided for the BCD was vacated after the applicant violated Article 86 of the UCMJ by departing AWOL.  The applicant acknowledged the affirmation of his sentence, elected not to petition for an appeal of that decision, and further requested immediate action be taken to finalize his sentence to the BCD.  His conviction and discharge were effected in accordance with applicable law and regulation and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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 punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge is not warranted in this case.

4.  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)                                         AR20090005277



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ABCMR Record of Proceedings (cont)                                         AR20090005277



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