IN THE CASE OF:	  

		BOARD DATE:	       16 JULY 2009

		DOCKET NUMBER:  AR20090006040 


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 be upgraded to a general discharge.

2.  The applicant states, in effect, that his right to a speedy trial was violated.  He served 91 days at the Coleman Barracks, in Mannheim, Germany, and was transferred to Fort Leavenworth, Kansas, where he served time for 9 months.  He was then processed for administrative leave, issued a military identification card, and put on a flight to Miami, Florida.  He remained on active duty for another 486 days.  It was explained to him that after 6 months his discharge would be upgraded to general under honorable conditions.  He served the time that he was directed as punishment for a one-time situation that he strongly feels was provoked.  He served 4 years of mostly honorable duty.  He does not feel that he should continue to be punished for the mistake for which he served his time.

3.  The applicant provides copies of his service medical and dental records; his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with two character reference letters, civilian training certificates, civilian medical treatment documentation, a Miami-Dade Police Department record, and his resume 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 record shows he enlisted in the Regular Army in pay 
grade E-1 on 21 November 1978 for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 76W, Petroleum Supply Specialist.  He was promoted to pay grade E-3 on 1 October 1979.  He served in Germany from 13 May 1979 to 23 June 1981.

3.  On 8 April 1980, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for being under the influence of intoxicating liquor or other alcoholic beverage and disobeying a lawful order from a uniformed military policeman on or about 2 March 1980.  His punishment included a reduction to pay grade E-2, 30 days of extra duty, and restriction.  He was reduced to pay grade E-2 on 8 April 1980.

4.  On 2 January 1981, a bar to reenlistment certificate was approved pertaining to the applicant.

5.  On 24 June 1981, the applicant was placed in pretrial confinement for the offenses of driving without a license, making a false statement, willful destruction of government property, and assault on a non-commissioned officer (NCO).

6.  On 23 September 1981, the applicant was convicted by a special court-martial of one specification of operating a vehicle while drunk on 3 April 1981, one specification of committing an assault upon an NCO by striking him on the back of the head with a rock with means likely to produce grievous bodily harm on 2 May 1981, one specification of stealing the property of another Soldier on 20 June 1981, and one specification of housebreaking on 20 June 1981.  The applicant was sentenced to a forfeiture of $334.00 pay per month for 6 months, confinement at hard labor for 5 months, and to be discharged from the Army with a bad conduct discharge.  The sentence was adjudged on 23 September 1981.

7.  On 23 September 1981, the applicant was reassigned to the U.S. Army Disciplinary Barracks, Fort Leavenworth.

8.  The applicant's special court-martial sentence was approved on 18 December 1981 and he was reduced to pay grade E-1 on the same day.

9.  On 29 December 1981, the applicant requested to be placed in an excess leave status.  He acknowledged that he was requesting the leave because he was awaiting a judicial decision as to whether he would be discharged with a punitive discharge; therefore, he desired to return to the civilian community while that decision was pending.  The request was approved on the same day.

10.  On 16 February 1982, the unexecuted portion of the applicant's sentence to confinement was remitted.  By direction of the Commandant, U.S. Army Disciplinary Barracks, Fort Leavenworth, the sentence to confinement was deferred on 29 December 1981 and the deferment was rescinded on 16 February 1982.

11.  On 25 October 1982, the U.S. Army Court of Military Review opined that the Court, having found the approved findings of guilty on the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, affirmed the finding of guilty and the sentence.

12.  On 11 March 1983, the applicant's sentence to a bad conduct discharge, forfeiture of $334.00 pay per month for a period of 6 months, and confinement at hard labor for 5 months, was ordered duly executed.

13.  The applicant was discharged on 21 March 1983 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial.  He was credited with 3 years, 9 months, and 26 days of net active service and lost time from 24 June 1981 to 28 December 1981 due to confinement.

14.  The applicant’s available records show the highest rank and pay grade he attained while on active duty was private first class, pay grade E-3, prior to his 1983 discharge.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.

15.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that an enlisted person would 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 sentence affirmed before it could be duly executed.

17.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

18.  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 change a court-martial 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 evidence shows that the applicant was convicted by a special court-martial and was found guilty of operating a vehicle while drunk, committing an assault upon an NCO by striking him on the back of the head with a rock with means likely to produce grievous bodily harm, stealing the property of another Soldier, and housebreaking.  He was discharged pursuant to the sentence of a special court-martial and was issued a bad conduct discharge after the sentence was affirmed.

2.  Trial by special court-martial was warranted by the gravity of the offenses charged.  A bad conduct discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  The applicant has submitted no evidence other than his assertion that he should not continue to be punished for the mistake for which he served his time.

4.  The Board is empowered to change the characterization of and reason for the discharge if clemency is determined to be appropriate.  His record contains no documented evidence of acts of valor or achievement warranting special recognition for clemency and an upgrade of his discharge.  Given the above, and after a thorough review of the applicant’s record and the serious nature of his offenses, there is no cause for clemency.

5.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge after 6 months or other passage of time.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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.



      _________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)                                         AR20090006040



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ABCMR Record of Proceedings (cont)                                         AR20090006040



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