IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016051 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that his misconduct was a result of his struggling with family problems coupled with alcoholism.  He also states he needed help in the form of counseling and treatment.  The applicant concludes the nature of his discharge had an adverse impact on his entire life and his ability to receive medical care.

3.  The applicant provides no documentary evidence in support of this 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 11 November 1975.  Upon completion of advanced individual training he was awarded the military occupational specialty 12B (Combat Engineer).  He reenlisted on 16 November 1978.  The highest rank/grade he attained while serving on active duty was sergeant/pay grade E-5.  However, at the time of his separation he held the rank/grade of private/pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions:

	a.  on 20 February 1976 for violating Article 134 by wrongfully possessing a controlled substance (marijuana),

	b.  on 28 May 1981 for violating Article 86 by failing to go at the prescribed time to his appointed place of duty on three occasions, and

	c.  on 15 January 1982 for violating Article 86 by being absent from his appointed place of duty on three occasions.

4.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 19 January 1982, and a letter from the commander of the 23d Engineer Battalion, 3d Armored Division, dated 26 January 1982, showing he was barred from reenlistment.

5.  Headquarters, 3d Armored Division, Special Court-Martial Order Number 55, dated 2 June 1982, shows the applicant was arraigned at Hanau, Federal Republic of Germany, on numerous offenses at a special court-martial convened by the command.  The offenses for which the applicant was charged and subsequently found guilty include:

	a.  two specifications of failing to go at the prescribed time to his appointed place of duty,

	b.  one specification of being absent without leave from his appointed place of duty,

	c.  one specification of willfully disobeying a lawful order from a superior commissioned officer,

	d.  three specifications of willfully disobeying a lawful order from a superior noncommissioned officer,

	e.  two specifications of breaking restriction,

	f.  one specification of wrongfully communicating a threat to injure a superior non-commissioned officer, and

	g.  one specification of escaping the lawful custody of military authorities.

6.  The sentence was adjudged on 30 April 1982 and the sentence was approved on 2 June 1982.  The punishment was as follows:

	a.  reduction to private/E-1,

	b.  forfeiture of $367.00 pay per month for 1 month,

	c.  confinement at hard labor for 1 month, and

	d.  a bad conduct discharge.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Court-Martial Order Number 299, dated 29 November 1982, shows the applicant's aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.  The order also shows that the portion of the sentence pertaining to confinement had been served.

8.  The record shows that on 20 December 1982 the applicant was discharged accordingly.  The DD Form 214 issued to him at the time shows the applicant completed a total of 4 years and 5 days of creditable active military service during his most recent period of enlistment.  This form also shows the applicant had 159 days of lost time during the period 15 July 1982 through 20 December 1982.  His service was characterized as "bad conduct" and the narrative reason for his separation was "as a result of court-martial."

9.  The applicant's record is void of any evidence he ever submitted an application to the Army Discharge Review Board requesting that his bad conduct discharge be upgraded to a general discharge under honorable conditions within its 15-year statute of limitations.

10.  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.

11.  Army Regulation 635-200 (Enlisted 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 discharge should be upgraded.

2.  The applicant's record is devoid of any evidence and he has failed to provide evidence that he had a problem with alcoholism or that he was ever denied counseling or treatment for his alleged alcoholism.

3.  The applicant's record reveals a pattern of misconduct culminating in his commission of serious crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or dishonorable discharge.  These crimes resulted in his trial by special court-martial which was warranted by the gravity of the offenses charged.  His 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.

4.  The evidence shows the applicant made no attempt to appeal his discharge to the Army Discharge Review Board within its 15-year statute of limitation.

5.  By law, any redress by this Board of the finality of a court-martial conviction 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.

6.  After review of the applicant's available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted and his lost time, it is also clear that his service was not satisfactory, thus did not meet the criterion for a general discharge under honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded 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)                                         AR20090016051



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ABCMR Record of Proceedings (cont)                                         AR20090016051



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