IN THE CASE OF:	  

		BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20090008100 


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 general discharge (GD) under honorable conditions.

2.  The applicant states he received his associate degree and has been contributing to society working as a drug and alcohol counselor.  He further states that he would like to purchase a house and would be honored to have his discharge upgraded so that he may receive some type of benefits.

3.  The applicant provides 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’s record shows he enlisted in the Regular Army (RA) and entered active duty on 24 October 1980.  He was trained in and awarded military occupational specialty (MOS) 63J (Quartermaster and Chemical Equipment Repairer).  His record documents no acts of valor or significant achievement.

3.  On 13 July 1981, a Special Court-Martial (SPCM) found the applicant guilty of violating Articles 86 and 121 of the Uniform Code of Military Justice (UCMJ) as follows:  Article 86, by being absent without leave (AWOL) on or about 13 April 1981 until on or about 22 April 1981, on or about 7 May 1981 until or 14 May 1981, and on or about 9 June 1981 until on or about 10 June 1981; and for failure to go to his appointed place of duty at the prescribed time from 2 June 1981 through 7 June 1981; Article 121, stealing a model RT-87405 Toshiba Radio Cassette Player of a value of more than $100.00, the property of another Soldier, on or about 17 April 1981.  The resultant sentence was confinement at hard labor for 3 months, reduction to private/E-1, a forfeiture of $100.00 pay for
3 months, and a BCD.

4.  On 20 May 1982, the United States Army Court of Military Review, after review and consideration of the entire record, agreed with the applicant's assertion that specifications 1 through 6 of the additional charge I which alleged that he failed to go to his appointed place of duty at the prescribed time "Headquarters and Light Company, Building 813, 724th Maintenance Battalion, Fort Stewart, Georgia were in violation of Article 86(1), UCMJ in that the words "Building 813" are insufficient to describe a specific place of duty as required by United States v Sturkey, 50 C.M.R.110.  The court set aside and dismissed the finding of guilty of specifications of 1 through 6 of the additional charge I.  The remaining findings of guilty were affirmed.  After reassessing the sentence on the basis of the above error and the whole record, the Court affirmed only so much of the sentence as provided for confinement at hard labor for 3 months, reduction to private/E-1, a forfeiture of $100.00 pay for 2 months, and a BCD.

5.  On 13 September 1982, SPCM Order Number 108, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia, directed that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, as reassessed, that the BCD portion of the applicant’s sentence be duly executed.  On 13 September 1982, the applicant was discharged accordingly.

6.  The DD Form 214 issued to the applicant upon discharge shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial with a BCD.  This document also shows he completed a total of 1 year, 9 months, and 5 days of creditable active military service.  It also shows he accrued 45 days of lost time due to being AWOL.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides 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.  

8.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his BCD should be upgraded to a GD based on good post service conduct by working with others as an alcohol and drug counselor was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge.  His record reveals no acts of valor or significant achievement.  His overall record of service is not sufficiently meritorious to support an upgrade of his BCD given the number of offenses that resulted in his court-martial conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.  

3.  The applicant is advised that this Board does not upgrade discharges for the purpose of assisting applicants in obtaining benefits from other agencies.



4.  Furthermore, any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  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)                                         AR20090008100



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ABCMR Record of Proceedings (cont)                                         AR20090008100



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