IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090010044 


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 (BCD) be upgraded to a general discharge.

2.  The applicant states that when he returned from overseas he was stationed at Fort Benning, Georgia.  He goes on to state that he got married and found out that his wife was cheating on him with his platoon sergeant.  He continues by stating that he had a breakdown and received psychiatric treatment after the event.  He also states that because of his wife's infidelity, he went absent without leave (AWOL).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 12 third-party letters of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's BCD be upgraded to a general discharge.

2.  Counsel states, in effect, that the issues raised by the applicant along with the character references he provides amply advance his case for an upgrade.

3.  Counsel provides no additional documents with the 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 in Montgomery, Alabama on 15 May 1979 for a period of 3 years and training as an infantryman.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Germany on 29 August 1979.  He was advanced to the pay grade of E-3 on 15 March 1980.

3.  On 5 May 1982, he reenlisted in the pay grade of E-4 for a period of 4 years, assignment to Fort Benning, and a selective reenlistment bonus.  He departed Germany on 11 May 1982 for assignment to Fort Benning, which is located in Columbus, Georgia.  He got married on 6 December 1982 and his spouse resided in Columbus.

4.  On 11 January 1983, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty.

5.  On 9 March 1983, nonjudicial punishment was imposed against him for failure to go to his place of duty.

6.  The applicant went AWOL on 15 April 1983 and remained absent until he returned to military control on 29 April 1983.  He again departed AWOL on 3 May 2003 and remained AWOL until he was apprehended by civil authorities in Phenix City, Alabama on 15 June 1983 and returned to military control at Fort Benning, where charges were preferred against him for the two AWOL offenses.

7.  On 22 July 1983, the applicant was convicted pursuant to his plea by a special court-martial of being AWOL from 15 April to 29 April and 3 May to 15 June 1983.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay, confinement at hard labor for 2 months, and a BCD.
8.  On 27 September 1984, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 4 years, 11 months, and 22 days of total active service and had approximately 141 days of lost time due to imprisonment and being AWOL.  

9.  On 4 December 1998, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  At that time, he indicated that he was young and that he knew his actions were not appropriate.  He went on to state that he was trying to get his life together, that he was receiving counseling for anger and that he needed his discharge upgraded in order to get a decent job.  After a thorough review of the applicant's records and the issues submitted, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 19 May 1999.

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. 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 therefore 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)                                         AR20090010044



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ABCMR Record of Proceedings (cont)                                         AR20090010044



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