IN THE CASE OF:	

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090005294 


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 under honorable conditions.

2.  The applicant states that he was stationed at Fort Campbell, KY and was called to testify against a private first class.  He states he was locked up for four months and given a BCD because they thought he had lied.  He contends that he did not lie.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 6 March 1979 for a period of
4 years.  The applicant completed the required training and he was awarded military occupational specialty 11B (infantryman).  His highest rank held was specialist four, E-4.  

3.  On 23 September 1981 and 7 June 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty and leaving his post before he was regularly relieved.  

4.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was confined by civil authorities from 3 August to 4 August 1981 for not having a operator's license and possession of marijuana with intent to sell.  

5.  On 13 December 1982, the applicant was found guilty, contrary to his pleas, by a special court-martial of violating a lawful general regulation by wrongfully breaking and entering the privately owned vehicle of a sergeant and stealing the property of a sergeant.  He was sentenced to be discharged from the service with a BCD, confinement at hard labor for 4 months, a forfeiture of $200.00 pay for 
4 months, and a reduction to E-1.  On 20 January 1983, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it to be executed.  

6.  On 14 October 1983, the Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 14 June 1984.

7.  The applicant was discharged on 22 June 1984 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial.  He completed a total of 5 years and 7 days of creditable active service with 100 days of lost time due to being in confinement.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

9.  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.

10.  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 applicant contends that he was locked up for 4 months and given a BCD because it was thought he had lied, but he did not lie.  However, there is no evidence of record and he has not provided any evidence to substantiate this contention.

2.  It is noted that the trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant’s record of service shows he received two Article 15s and was convicted by a special court-martial conviction for violating a lawful general regulation by wrongfully breaking and entering the privately owned vehicle of a sergeant and stealing the property of a sergeant.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge under honorable conditions.

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)                                         AR20090005294



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005294



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1