IN THE CASE OF:	  

		BOARD DATE:	    7 January 2010

		DOCKET NUMBER:  AR20090010098 


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, in effect, that he was discriminated against.  He was awakened by two white males at 3:00 am.  He was hung over from drinking.  He was told to follow them.  Being that he was not in his right state of mind, he did what they asked.  Upon arrival at their destination, he was told to hold certain items.  The owners arrived and the applicant was arrested along with the other two males.  The applicant contends that he did not have good lawyers.  The two white males got a second chance and were sent to the retraining brigade.  The applicant was imprisoned and received a bad conduct discharge.  The applicant has lived with this discharge on his shoulders.  He only had 3 months remaining on his enlistment and had thought about making the Army a career.   

3.  The applicant provides no additional documentation 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.  On 19 April 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 76D (Materiel Supply Specialist).

3.  On 2 August 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go, at the time prescribed, to his place of duty.  The punishment included a forfeiture of $50.00 pay per month for 1 month, and 10 days of restriction and extra duty.

4.  On 23 September 1977, the applicant departed Fort Lee, Virginia, for duty in the Federal Republic of Germany.  

5.  On 12 October 1977, the applicant was assigned to A Troop, 1st Squadron, 1st Cavalry Regiment.

6.  On 26 January 1978, the applicant was reassigned to B Troop, 1st Squadron, 1st Cavalry Regiment.

7.  On 11 May 1978, the applicant's commander recommended the applicant be barred from reenlistment.  The commander based his request on the applicant's NJP and failure to maintain proper standards.  The applicant's uniforms were not up to standards.  He reported to formations unshaven and had to be sent back to the barracks to shave.  The applicant had a quick temper when anyone tried to talk to him about cleaning himself up or cleaning his area.  The commander believed the time spent trying to correct the applicant could have been better spent helping other troops who were trying and really wanted help.  The applicant did not submit a statement in his own behalf.  The appropriate authority approved the bar to reenlistment on 31 May 1978.   The bar to reenlistment was reviewed on 24 January 1979 and again on 16 July 1979.  Both times the commander felt the bar should be retained.

8.  On 12 November 1979, the applicant accepted NJP for unlawful attempted  entry; for assault by grabbing and pulling a German police officer to the ground; and for assault of a German police officer by kicking him in the abdomen.   The punishment included reduction to pay grade E1, a forfeiture of $104.00 pay for 
1 month and 14 days of restriction and extra duty.
9.  On 30 June 1980, the applicant went before a military judge at a special court-martial.  He was charged under the UCMJ for violation of Article 121 for stealing clothing valued at approximately $2,530.00, the property of a German national; and for violation of Article 130 for unlawful entry into a boutique with the intent to commit a criminal offense.  He was additionally charged with violation of Article 134 for willful and wrongful exposure of his sexual organs in an indecent manner.  The applicant pled guilty to the two original charges and not guilty to the additional charge.  He was found guilty of the two original charges and not guilty of the additional charge.  He was sentenced to a bad conduct discharge, a forfeiture of $299.00 pay per month for 6 months, and confinement at hard labor for 6 months.  On 29 August 1980, the convening authority only approved so much of the sentence that provided for a bad conduct discharge, 4 months in confinement, and a forfeiture of $299.00 pay for 4 months.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 

10.  On 6 January 1981, the United States Army Court of Military Review corrected the court-martial order to amend the specification of the second charge by adding the boutique owner's name.  It affirmed the approved findings of guilty and the sentence. 

11.  On 13 May 1981, the sentence having been affirmed pursuant to Article 71c, the sentence to a bad conduct discharge was ordered executed. 

12.  Accordingly, the applicant was discharged on 1 June 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.

13.  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.

14.  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.
15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 contends that his bad conduct discharge should be upgraded to honorable due to discrimination.

2.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  The available evidence does not support that the applicant was the subject of discrimination.  Court-martial sentences are normally determined on a case by case basis and take into account the individual's entire record.  The applicant had a history of unlawful entry and assault prior to his court-martial.  The available evidence does not show the applicant's sentence was disproportionate to that of anyone else who may have been involved in the same criminal act.    

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or general discharge.

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 above, the applicant's request should be denied.






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)                                         AR20090010098



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ABCMR Record of Proceedings (cont)                                         AR20090010098



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