IN THE CASE OF:	 

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090014263 


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, in effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, he believes he was wronged, he was innocent at the time and he is innocent now.  

3.  The applicant provides no additional documentary evidence 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.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 31 May 1975.  He was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he earned no individual awards or decorations during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following eight separate occasions for the offenses indicated:  12 April 1976, for being absent without leave (AWOL) from 
1 through 6 April 1976; 25 June 1976, for missing company formation; 5 August 1976, for missing company formation; 3 November 1976, for treating a superior noncommissioned officer (NCO) with contempt and being drunk and disorderly; 
4 November 1976, for missing work call formation; 18 November 1976, for failing to go to his appointed place of duty at the time prescribed; 19 May 1977, for failing to go to his appointed place of duty at the time prescribed; and 
4 November 1977, for missing morning formation. 

5.  On 8 March 1978, a special court-martial (SPCM) found the applicant guilty, contrary to his pleas, of violating Article 121 and Article 86 of the UCMJ as follows:  Article 121, by stealing a television valued at $140.00, the property of another Soldier on or about 18 October 1977; and Article 86, by being AWOL from 13 through 14 February 1978.  The resulting sentence from the military judge was confinement at hard labor for 1 month, a forfeiture of $265.00, and a BCD.  

6.  Headquarters, 7th Infantry Division and Fort Ord, California, SPCM Order Number 33, dated 20 April 1978, shows the applicant's sentence was approved by the appropriate authority and his confinement was directed in the Confinement Facility, Fort Ord, pending completion of the appellate review.  

7.  Headquarters, 7th Infantry Division and Fort Ord, SPCM Order Number 96, dated 6 December 1978, confirmed the applicant's conviction and the sentence had been affirmed pursuant to Article 66 of the UCMJ and directed, Article 71(c) of the UCMJ having been complied with, that the BCD portion of the applicant’s sentence be executed.  On 6 April 1979, the applicant was discharged accordingly.  



8.  The DD Form 214 issued to the applicant upon his discharge on 6 April 1979 shows he completed a total of 3 years, 9 months, and 7 days of creditable active military service and he accrued 58 days of time lost due to being AWOL and in confinement. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

12.  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.  The applicant's contention that he was wronged and that he was and remains innocent was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ, is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  In this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or his subsequent discharge, and his record reveals no acts of valor or significant achievement; however, it does reveal a significant disciplinary history that includes his receiving NJP on eight separate occasions.  Given his record of misconduct, the gravity of the offenses that resulted in his SPCM conviction, and based on his undistinguished record of service, there is an insufficient evidentiary basis to support clemency in this case. 

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)                                         AR20090014263



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ABCMR Record of Proceedings (cont)                                         AR20090014263



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