IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008527 


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 rank be restored and that his bad conduct discharge (BCD) be upgraded to at least a general discharge.

2.  The applicant states that in May 1991 he was sent on a mission to recover chemical warheads as an aircraft crewmember which involved six U.S. Army and eight foreign military members.  He goes on to state that they went to a storage place in Iraq about 70 kilometers from Baghdad and loaded warheads on a UH-1 helicopter.  He also states that they came under fire and five U.S. and three British members were lost.  He also states that when he was returned to the United States he was left at Fort Leavenworth, Kansas, with orders to turn himself in as being absent without leave (AWOL) and to not speak of the mission due to the security of the on-going mission.  He continues by stating that he knew the mission was top secret and not on the books and that there were 24 chemical warheads with "CIA" markings.  He further states that he was told by an officer that if he ever revealed the truth of the mission that he would not go to Fort Leavenworth, he would be under it.

3.  The applicant provides no additional documents with 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 records, though somewhat incomplete, show that he enlisted in the Regular Army on 13 May 1980 for a period of 3 years and training as a utility helicopter repairer.  He completed his basic training at Fort McClellan, Alabama, and his advanced individual training at Fort Rucker, Alabama.  He remained on active duty through a series of reenlistments and was promoted to the pay grade of E-6 on 1 June 1989.

3.  He served a tour in Korea, a tour in Germany, and on 15 August 1988 he completed a second tour in Korea and was transferred Fort Eustis, Virginia, for duty as an instructor/writer in the U.S. Army Aviation Logistics School.

4.  On 18 October 1990, he went AWOL and remained absent until he surrendered to military authorities at Fort Leavenworth on 15 January 1991 and was transferred to Fort Eustis.

5.  On 26 March 1991, he was convicted by a special court-martial of being AWOL from 18 October 1990 to 15 January 1991 and of dishonorably failing to pay his debts.  He was sentenced to be reduced to the pay grade of E-1, confinement for 60 days, and a BCD.

6.  The applicant was placed on excess leave on 14 May 1991 pending the outcome of his appellate review.

7.  The results of the appellate review of his court-martial are not present in the available records.  However, his records show that he was discharged pursuant to a court-martial conviction.  He had served 11 years, 5 months, and 19 days of total active service and had 89 days of lost time due to AWOL.

8.  There is no evidence in the available records to show that he was ever deployed to Southwest Asia in any capacity.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  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.

2.  The type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted; however, he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence to warrant an upgrade of his discharge.

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)                                         AR20090008527



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ABCMR Record of Proceedings (cont)                                         AR20090008527



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