IN THE CASE OF:	  

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090006411 


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 an upgrade of his bad conduct discharge. 

2.  The applicant states that years ago an official at the Trenton Regional Office of the Department of Veterans Affairs told him that his bad conduct discharge would be changed to an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 October 1977, in support of his request.

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 enlisted in the New Jersey Army National Guard on 2 October 1976.  He was subsequently ordered to active duty for training, completed basic combat training at Fort Knox, KY, and proceeded to Fort Benjamin Harrison, IN, on or about 13 March 1977 for completion of advanced individual training for military occupational specialty 75B (Personnel Administration Specialist).  He was assigned to Company E, 2nd Battalion, Troop Brigade.

3.  On 17 May 1977, the applicant accepted nonjudicial punishment for being absent without leave (AWOL) during the period on or about 2 May 1977 through on or about 4 May 1977.  His punishment consisted of a forfeiture of $80.00 pay for 1 month ($40.00 suspended for 2 months), 7 days of restriction, and 7 days of extra duty.

4.  On 8 July 1977, at a special court-martial, the applicant pleaded guilty to one specification of committing an assault against another Soldier with means likely to produce grievous bodily harm on or about 22 May 1977.  He also pleaded not guilty to two specifications of wrongfully communicating a threat against another Soldier on or about 23 May 1977.  The court found him guilty and/or not guilty in accordance with his pleas and sentenced him to a forfeiture of $240.00 pay for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge. 
The sentence was adjudged on 12 July 1977.  The applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, from 25 May 1977 to 25 September 1977.

5.  On 22 September 1977, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, published Orders 186-10, reassigning the applicant to the U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ, pending appellate review.

6.  On 11 October 1977, the convening authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, he ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

7.  On 25 October 1977, the applicant received a letter of reprimand for his unsatisfactory performance as evidenced by his two instances of being late to work, three instances of being awakened and ordered to get out of bed, lack of motivation, negative attitude, and failure to respond to counseling.

8.  On 28 October 1977, Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, published Orders 301-78, releasing the applicant from attachment effective 28 October 1977 and placing him in an indefinite excess leave status.
9.  On 2 November 1978, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, Special Court-Martial Order Number 79, dated 2 November 1978, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

11.  On 7 December 1978, the applicant was notified by certified letter that his involuntary excess leave was terminated effective 11 December 1978 and that he was to report back to the PCF, Fort Dix, NJ, no later than 15 December 1978 for the purpose of a physical examination.  However, his records show that he failed to report.

12.  On 16 December 1978, the PCF commander reported the applicant in an AWOL status and, on 17 December 1978, he dropped him from the Army rolls.

13.  On 20 December 1978, the U.S. Court of Military Appeals notified the applicant that his petition for a grant of review was denied by the U.S. Army Court of Military Review.

14.  On 26 February 1979, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 16 December 1978 through on or about a date to be determined.

15.  On 21 January 1980, the applicant returned to military control.

16.  On 23 January 1980, the applicant was again reported in an AWOL status and was subsequently dropped from the Army rolls on 22 February 1980.

17.  On 4 April 1980, by letter to the PCF, Fort Dix, NJ, the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, requested the bad conduct discharge be executed.  However, there is no record that the appropriate action was taken.

18.  On 29 September 1988, by memorandum addressed to the U.S. Total Army Personnel Command, Alexandria, VA, the Chief, U.S. Army Deserter Information Point, Fort Benjamin Harrison, IN, requested consideration and possible action to discharge the applicant in absentia.

19.  On 4 November 1988, by memorandum, the U.S. Total Army Personnel Command Judge Advocate notified the Chief, Separations Section, that the applicant’s bad conduct discharge could have been executed in absentia at any time after 2 November 1978.  He added that the letter, dated 7 December 1978, that terminated his excess leave was incorrect as there was no requirement to have a physical examination for execution of the bad conduct discharge.  He also added that the bad conduct discharge should be executed immediately.

20.  On 15 December 1988, Headquarters, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, published Orders 101-4 discharging the applicant from the Army effective 11 October 1977.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further shows the applicant completed a total of 4 months and 13 days of creditable military service.  He also had 140 days of lost time.

21.  On 4 December 1992, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

22.  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.

23.  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.

24.  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 bad conduct discharge should be upgraded because a Department of Veterans Affairs official told him that his bad conduct discharge would be changed to an honorable discharge after a passage of time was carefully considered; however, it was found to be without merit.  The Army has never had a policy that provides for automatic upgrade of a discharge due to the passage of time.

2.  The evidence of record shows that the applicant had a history of misconduct, including one instance of an Article 15 and a special court-martial.  His trial by special 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 characterizes the misconduct for which the applicant was convicted.

3.  It is unclear why the bad conduct discharge was not executed by officials at Fort Dix, NJ, immediately after the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence on 2 November 1978.  Nevertheless, the applicant was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

4.  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 the applicant's discharge to 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)                                         AR20090006411



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ABCMR Record of Proceedings (cont)                                         AR20090006411



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