IN THE CASE OF:
BOARD DATE: 7 January 2010
DOCKET NUMBER: AR20090010546
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.
2. The applicant states his discharge should be changed due to his family/marital problems, his alcohol abuse, and his post-service work with children and in his community.
3. The applicant provides a copy of his legal name change decree, birth certificate, high school identification card, and two Social Security cards.
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 applicants 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 applicants 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 3 October 1983 and reenlisted on 7 May 1986.
3. During his second enlistment the applicant was absent without leave (AWOL) from 30 October 1987 through 26 November 1987.
4. Headquarters, United States Army Engineer Center and Fort Leonard Wood General Court-Martial Order Number 5, dated 26 March 1991, shows the applicant was found guilty of being AWOL from 12 October 1990 through 5 November 1990, missing movement, and assault and battery. He was sentenced to a bad conduct discharge, confinement for six months, forfeiture of $400.00 pay per month for six months, and to be reduced to the lowest enlisted grade. The convening authority approved the sentence.
5. The Army Court of Military Review affirmed the findings and sentence of the court-martial on 28 June 1991.
6. On 5 August 1991 the applicant was placed on involuntary excess leave.
7. The applicant was discharged on 22 October 1991 with a BCD. He had 7 years, 6 months, and 3 days of creditable service with 199 days of lost time and 99 days of excess leave.
8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows award the Army Service Ribbon, the Good Conduct Medal (2nd award), the Overseas Service Ribbon, the Army Achievement Medal with three Oak Leaf Clusters, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Hand Grenade Bar. Not listed on the DD Form 214 but contained in the record is a set of orders showing award of the Army Commendation Medal with one Oak Leaf Cluster.
9. The applicant's service medical records do not contain any indication of complaints of or treatment for alcohol-related problems.
10. On 8 October 1993, the State of Colorado Denver County Court authorized the applicant's request for a legal name change from J____ F____ B_____ to R_____ H_____ A_____.
11. A 6 March 2001 request for records from the Dallas, TX Department of Veterans Affairs office lists the applicant as a homeless Veteran.
12. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) , sets forth the policies and procedures for enlisted personnel separations. Chapter 3 outlines the criteria for characterization of service. Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty. Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
13. 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 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 states his discharge should be changed due to his family/marital problems, his alcohol abuse, and his post-service work with children and in his community.
2. The applicant has not provided and the record does not contain any documentation that the applicant made his command aware of any marital problems.
3. The applicant has not provided and the record does not contain any documentation that he had an alcohol abuse problem while on active duty, that his command was aware of an alcohol problem, that he sought counseling or treatment for this problem, or that he currently has this problem under control.
4. The applicant has not provided and the record does not contain any documentation to support his contentions that the has become a trusted and productive member of his community.
5. However, even if the applicant had submitted documentation to show he had marital and alcohol problems and is now a good citizen, it would not form a basis for granting his request.
6. 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.
7. 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.
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