IN THE CASE OF:	

		BOARD DATE:	 23 February 2010 

		DOCKET NUMBER:  AR20090014704 


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 an under honorable conditions (general) discharge.

2.  The applicant states, in effect, during his court-martial he plea-bargained because he was improperly represented.  He also states that he was young, fearful, and did not measure the long-term consequences of a bad conduct discharge.  He adds that he did not cause harm to anyone.

   a.  He states that he has been a law-abiding and responsible citizen since his discharge.  He adds he is a California Real Estate Broker in good standing and a consultant for an attorney.

	b.  He states that he accepts full responsibility, has paid his debt to the service, and is remorseful and ashamed.  He adds that he does not want to die with this on his record and asks for clemency.

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 enlisted and entered active duty in the Regular Army for a period of 3 years on 9 July 1974.  At the time the applicant was 18 years of age. Upon completion of training he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 9 October 1974, the applicant received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for one day on 7 October 1974.  His punishment consisted of forfeiture of $25.00 for one month, seven days of extra duty, and seven days of restriction to the company area.

4.  On 6 January 1975, the applicant received NJP for being AWOL from
30 December 1974 to 1 January 1975.  His punishment consisted of forfeiture of $150.00 for two months and assignment to the Correctional Custody Facility for 14 days.  On 13 January 1975, the applicant appealed the NJP.  The appeal authority granted the applicant's appeal, in part, and the punishment of 14 days in correctional custody was suspended for 60 days.

5.  The applicant was promoted to specialist four (E-4) on 1 November 1975.

6.  At a summary court-martial in January 1976, the applicant pled not guilty to wrongfully having in his possession 10.00 grams (more or less) of marijuana on
4 December 1975, and for unlawfully striking with his fist a fellow Soldier on the back of his head on 5 December 1975.  The applicant was found guilty of the charges and specifications.  He was sentenced to reduction to private first class (E-3), forfeiture of $100.00 for one month, and 30 days of hard labor without confinement.  (No previous convictions considered.)  On 19 January 1976, the convening authority approved only so much of the sentence that provided for reduction to private first class (E-3) and forfeiture of $100.00 for one month, and ordered the sentence executed.

7.  On 5 May 1976, the applicant received NJP for failing to go at the time prescribed to his appointed place of duty (company formation).  His punishment consisted of forfeiture of $30.00 for one month, 14 days of restriction, and seven days of extra duty.
8.  On 24 October 1976, the applicant was charged with reckless driving and driving while intoxicated in Olympia, Washington.

9.  The applicant was placed in an AWOL status effective 22 December 1976 and returned to duty on 27 December 1976.

10.  The applicant was placed in a confined status by civilian authorities effective 30 January 1977 and returned to duty on 25 February 1977.

11.  On 1 June 1977, the applicant received NJP for being AWOL for one day on 13 May 1977, and for leaving his appointed place of duty without authority on
16 May 1977.  His punishment consisted of reduction to private (E-2), 14 days of extra duty, and 14 days of restriction.

12.  At a special court-martial in September 1977, the applicant pled not guilty to disobeying a lawful order from a commissioned officer on 16 June 1977; failing to obey a lawful order issued on 16 June 1977; resisting being apprehended by a Military Policeman on 16 June 1977; and assaulting a person in the execution of Military Police duties by striking him with an automobile.  The applicant pled guilty to breaking restriction on 16 June 1977.  He was found guilty of the charges and specifications, except the charge and specification of failing to obey a lawful order issued on 16 June 1977.  On 2 September 1977, the applicant was sentenced to a bad conduct discharge. (One previous conviction considered.)  On 22 November 1977, the convening authority approved the sentence and ordered the applicant be retained in the command pending completion of the appellate review by a Court of Military Review.

13.  The applicant was placed in an AWOL status effective 13 September 1977 and returned to duty on 14 April 1978.

14.  On 31 October 1978, the U.S. Army Court of Military Review set aside the specification of resisting being lawfully apprehended by a Military Policeman on 16 June 1977 and dismissed the charge, and affirmed the remaining findings of guilty.  The Court reassessed the sentence on the basis of the error that resulted in the set aside and dismissal of the one specification and charge, along with the entire record, and affirmed the sentence as approved.  On 23 January 1979, the provisions of Article 71(c), UCMJ, having been complied with, the bad conduct discharge was ordered executed.

15.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant was discharged on 12 February 1979 with a bad conduct discharge.  At the time of his discharge he had completed 3 years, 10 months, and 28 days of net active service during the period of service under review.  He had a total of 246 days of time lost.

16.  Army Regulation 635-200 (Personnel Separations), 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 contends that his bad conduct discharge should be upgraded to an under honorable conditions (general) discharge because during his court-martial he plea-bargained due to the fact that he was improperly represented.  He also contends that he was young, fearful, and did not measure the long-term consequences of a bad conduct discharge.

2.  Considering that the applicant had demonstrated the capacity for honorable service by the completion of training and promotion through the ranks to pay grade E-4, his contention that he was young, fearful, and unable to understand the long-term consequences of his actions is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.  

3.  The applicant's contentions that he plea-bargained and was improperly represented at his court-martial relate to matters that could have been raised in the court-martial appellate process.  Accordingly, they furnish no basis for upgrade of the applicant's discharge.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

5.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

6.  The applicant's contentions regarding his post service conduct were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

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.

ABCMR Record of Proceedings (cont)                                         AR20090014704



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ABCMR Record of Proceedings (cont)                                         AR20090014704



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