BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008533 


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 honorable.

2.  The applicant states that he does not believe there is an error or injustice with his discharge.  He was young and did not know how to act at the time.  He is asking for mercy.  It has been 18 years and he does not want to die with a bad conduct discharge.

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

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.  On 10 April 1979, the applicant, at 20 years of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).  He was subsequently assigned for duty at Fort Benning, Georgia.

3.  On 29 January 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for communicating a threat to a noncommissioned officer (NCO), for being disrespectful in language towards an NCO, for failing to go to his appointed place of duty, and for failing to obey a lawful order.  The punishment included a forfeiture of $104.00 pay and 14 days of extra duty.

4.  On 25 February 1980, the applicant accepted NJP for failing to go to company formation.  The punishment included a forfeiture of $100.00 pay.

5.  On 11 April 1980, charges were preferred under the UCMJ.  Charge I was for violation of Article 128 (one specification) for unlawfully striking another Soldier in the face with his fists.  Charge II was for violation of Article 121 (one specification) for wrongful appropriation of a privately owned automobile, the property of another Soldier.  Charge III was for violation of Article 92 (one specification) for failing to obey a lawful order by having visitors in his room during unauthorized hours.  Charge IV was for violation of Article 86 (one specification) for failing to go to morning formation.

6.  On 13 May 1980, additional charges were preferred under the UCMJ.  Additional Charge I was for violation of Article 121 (one specification) for stealing a pair of sunglasses valued at about $8.00 from the Army and Air Force Exchange Service.  Additional Charge II was for violation of Article 91 (one specification) for striking an NCO, who at the time was in the execution of his duties, on the head with a glass bottle.

7.  On 6 June 1980, before a military judge at a special court-martial, the applicant pled not guilty to all charges and specifications.

8.  On 6 June 1980, the military judge found the applicant guilty of all charges and specifications, except for Charge III and its specification, of which he was found not guilty.

9.  The military judge sentenced the applicant to a forfeiture of $299.00 pay per month for 6 months, confinement at hard labor for 6 months, and a bad conduct discharge.  No previous convictions were considered.

10.  On 28 August 1980, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the charges and specifications, the evidence, the findings and sentence, and personal data of the applicant.  The SJA also stated that the applicant contended that he was 21 years of age in an unsworn statement.  He was a high school graduate and had entered the Army on 10 April 1979 for travel and excitement.  He had not received either.  His MOS was that of an ammunition specialist.  His parents were divorced.  His mother and eight children lived at home.  He sent $150.00 or more home each month.  At the time of his enlistment, he had intended to stay in the Army.  He still wanted to stay in the Army but wanted a different MOS and [duty] place.  He felt that he had an obligation to help his mother financially; otherwise, she would have a difficult time.  The SJA recommended that the convening authority disapprove the findings of guilty as to charge IV and its specification, noting that the evidence of record had not established the applicant's absence was without authority.  The SJA recommended that the remaining charges and specifications be approved.  Pending completion of the appellate review, the applicant should be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.

11.  On 26 September 1980, the convening authority disapproved the findings of guilty of Charge IV and its specification.  The sentence was approved.  The forfeiture was applied to pay due on and after the date of the approval.  The applicant was to be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct.

12.  On 20 November 1980, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

13.  The sentence having been affirmed pursuant to Article 71c, the sentence to a bad conduct discharge was ordered executed.

14.  Accordingly, the applicant was discharged on 27 February 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3.  He received a bad conduct characterization of service.

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

16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

18.  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 states that he does not believe there is any error or injustice with his discharge.  He contends that he was young and did not know how to act at the time.

2.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 20 years of age when he enlisted.  He satisfactorily completed his initial training.  His satisfactory performance during training shows that he was neither too young nor immature to serve honorably.  Furthermore, misconduct involving assault and theft is much more than just "not knowing how to act."

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090008533



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ABCMR Record of Proceedings (cont)                                         AR20090008533



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