BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090008779 


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 under honorable conditions discharge.

2.  The applicant states, in effect, his discharge was for minor offenses which most were wrong.  He adds that it was an injustice.

3.  The applicant provides no additional documentary evidence in support of this 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 enlisted in the Regular Army on 21 October 1981 and upon completion of initial entry training was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 4 November 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.  

4.  A DA Form 4187 (Personnel Action) dated 5 February 1982 shows the applicant was absent without leave (AWOL) for five days.

5.  On 23 February 1985, the applicant accepted NJP under Article 15, UCMJ, for four specifications of failing to go at the time prescribed to his appointed place of duty.

6.  On 31 May 1985, the applicant accepted NJP under Article 15, UCMJ, for behaving with disrespect towards a commissioned officer by failing to render a hand salute.

7.  On 23 July 1985, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty and for conspiring to commit a larceny against the U.S. government by stealing an Army dependent identification card by alleging to be married to a conspirator.

8.  On 31 August 1985, the applicant was convicted, in accordance with his pleas, by a special court-martial of the following offenses:

	a.  failure to repair on 31 July 1985;

	b.  unauthorized absence from 1 August 1985 to 5 August 1985;

	c.  unauthorized absence from 14 August 1985 to 16 August 1985;

	d.  unauthorized absence from 17 August 1985 to 19 August 1985;

	e.  willfully disobeying a lawful command from a superior commissioned officer on 31 July 1985; and

	f.  breaking restriction on 31 July 1985.

9.  The applicant was sentenced to be discharged from the service with a bad conduct discharge, to be confined for 1 month, and to forfeit $200.00 for 
1 month.
10.  On 18 September 1985, the applicant accepted NJP under Article 15, UCMJ, for disobeying a lawful order from a superior noncommissioned officer.

11.  On 10 October 1985, the sentence was approved and, except for that part of the sentence extending to a bad conduct discharge, was ordered executed.  

12.  On 12 May 1986, the applicant's bad conduct discharge was ordered executed.

13.  On 25 July 1986, the applicant was discharged, pursuant to his sentence by court-martial, with a bad conduct discharge.

14.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations

15.  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.

16.  Army Regulation 635-200 (Personnel Separations), 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's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record of indiscipline includes several punishments under the provisions of Article 15, UCMJ, and a conviction by a special court-martial.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions discharge.

3.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

4.  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)                                         AR20090008779



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ABCMR Record of Proceedings (cont)                                         AR20090008779



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