IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090012025 


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 an upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD).

2.  The applicant states that he:

* had a hard time as he found Army life to be confusing
* was in infantry units that were extremely physical
* used drugs and alcohol to cope with situations
* found himself in debt and he started writing bad checks
* stopped paying his bills
* was arrested by the state of Colorado on fraud charges
* was sent to pretrial confinement which resulted in him being absent without leave (AWOL)
* was sentenced to 4 months of confinement at hard labor and a forfeiture of pay
* received alcohol and/or drug treatment once he left the Army
* suffers from depression and bipolar disorder
* would have been a better Soldier had he been properly medicated

3.  The applicant provides an undated letter addressed "To Whom It May Concern."




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 18 October 1977, the applicant enlisted in the Army for 6 years.  He successfully completed his training as an infantryman.

3.  Nonjudicial punishments (NJP) were imposed against him for being absent without leave (AWOL) on the following dates:

* 9 February 1978 through 10 February 1978
* 24 March 1978 through 25 April 1978
* 0900 hours through 1230 hours on 7 August 1978

4.  His punishments consisted of:

* a forfeitures of pay
* reductions in pay grade
* extra duty

5.  On 26 February 1980, the applicant was convicted, pursuant to his pleas, by a special court-martial of being AWOL from 8 October 1979 through 29 January 1980.  His sentence consisted of the following:

* discharge from the Army with a BCD
* confinement at hard labor for 4 months
* reduction to the pay grade of E-1
* a forfeiture of $200.00 pay for 4 months





6.  The convening authority approved the sentence as adjudged but execution of that portion extending to confinement at hard labor for 4 months was suspended for 6 months at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.

7.  On 24 September 1980, Special Court-Martial Order Number 119, Department of the Army, Headquarters, Fort Carson and 4th Infantry Division (Mechanized) shows the sentence was affirmed and ordered the BCD to be executed.

8.  On 9 April 1981, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, as a result of a duly reviewed and affirmed special court-martial conviction with a BCD.  He had completed 2 years, 11 months, and 19 days of net active service this period and he had approximately 185 days of lost time due to being AWOL and in confinement.  

9.  A review of the available records does not show the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Title 10, U. S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy and procedures for separating members with a dishonorable or BCD.  The regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  It further provided the appellate review must be completed and the affirmed sentence ordered duly executed.

   a.  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.  


   b.  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 contentions were considered and are not supported by the available evidence.

2.  There is no evidence in the available record and the applicant did not submit any evidence that shows he had alcohol and drug problems while he was in the Army.

3.  The records show he had NJP imposed against him on three separate occasions and was convicted by a special court-martial for being AWOL.  

4.  Based on his overall record of service, he did not serve honorably or under honorable conditions.  His BCD appropriately characterizes his service and it is not severe considering the nature of his offenses.

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)                                         AR20090012025



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ABCMR Record of Proceedings (cont)                                         AR20090012025



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