IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090010593 


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 at least a general discharge.

2.  The applicant states that he was an alcoholic in need of help, that his first drink was at age 4, that no one helped him and that they just let him hang himself, and that this is the source of his continued depression.  He contends that he suffers from depression and has since his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.  His application indicates that he provided medical documentation and an arrest record; however, this documentation is not available.

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 25 October 1983 for a period of 3 years.  He trained as a cavalry scout and was honorably discharged on 10 June 1986 for immediate reenlistment.  He reenlisted on 11 June 1986 for a period of 5 years.

3.  On 19 June 1987, the applicant was convicted by a special court-martial of three specifications of assault, two specifications of damaging property, drunk driving, and communicating a threat to injure.  He was sentenced to be confined for 4 months and 10 days, to forfeit $660.00 pay per month for 4 months, to be reduced to E-1, and to be discharged from the service with a bad conduct discharge.  On 20 August 1987, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 4 months and 10 days, forfeiture of $438.00 pay per month for 4 months, and reduction to E-1.

4.  On 25 November 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 26 September 1988, the convening authority ordered the bad conduct discharge to be executed.

5.  Accordingly, the applicant was discharged with a bad conduct discharge on 7 October 1988 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial.  He had served a total of 4 years, 7 months, and 26 days of creditable active service with 107 days of lost time.

6.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.

7.  On 2 November 1993, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Army Regulation 635-200, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was an alcoholic while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol abuse or dependency prior to his discharge or that he referred himself for treatment of alcohol problems.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

3.  The applicant's record of service during his last enlistment included one special court-martial conviction for serious offenses and 107 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.



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)                                         AR20090010593



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ABCMR Record of Proceedings (cont)                                         AR20090010593



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