BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016164 


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).

2.  The applicant states he was young and hung around with the wrong crowd while he was in the military and he now separates himself from those kinds of people.  He further states he has been a law-abiding citizen for the last 19 years, has remained employed, and is a good worker.  He states he is involved in his community and is a good citizen.

3.  The applicant provides three character references 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 19 August 1976.  He was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant's record documents no acts of valor or significant achievement and shows he was first promoted to private first class (PFC)/E-3 on 1 September 1977, which is the highest rank he held while serving on active duty.  The record also shows he was reduced to private (PV2)/E-2 for cause on 6 June 1978.  It further shows that on 6 October 1978 he was again promoted to PFC/E-3.  He was again reduced to PV2/E-2 for cause on 5 December 1978 and he was further reduced to private (PV1)/E-1 on 21 June 1979.

4.  The applicant's disciplinary history shows that he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  1 November 1977, for being disrespectful in language toward a superior noncommissioned officer (NCO); 10 May 1978, for failure to go to his appointed place of duty at the time prescribed and being derelict in the performance of his duties; 6 June 1978, for failing to go to his appointed place of duty at the time prescribed; and 5 December 1978, for disobeying a lawful order from a superior NCO and absenting himself from his unit without authority.

5.  On 2 April 1979, a general court marital (GCM) found the applicant guilty of violating Article 128 of the UCMJ by unlawfully stealing from another Soldier on or about 3 November 1978.  The resulting sentence was a reduction to PV1/E-1, forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a dishonorable discharge.  This sentence was approved by the convening authority in Headquarters, 1st Armored Division, GCM Order Number 45, dated 21 June 1979, who also directed the applicant be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, pending completion of the appellate review.

6.  On 30 August 1979, the U.S. Army Court of Military Review, having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, affirmed the findings of guilty and the sentence.

7.  On 30 October 1980, upon reassessing the sentence pursuant to the direction of the U.S. Court of Military Appeals, the U.S. Army Court of Military Review affirmed only so much of the applicant's sentence as provided for a BCD, forfeiture of all pay and allowances, reduction to PV1/E-1, and confinement at hard labor for 34 months.

8.  On 5 June 1981, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, GCM Order Number 398 directed, the sentence as modified and affirmed pursuant to Article 67 of the UCMJ and Article 71(c) of the UCMJ having been complied with, that the sentence as modified be duly executed.

9.  On 2 July 1981, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations), by reason of court-martial and received a BCD.  The DD Form 214 he was issued at the time shows he completed a total of 2 years, 7 months, and 13 days of creditable active military service and had accrued 823 days of time lost due to confinement.

10.  The applicant provides three character references from his pastor, employer and a co-worker, who all attest to his good character, citizenship, and employment history.

11.  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 BCD.  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.

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 his BCD should be upgraded based on his good post-service conduct was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

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 reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  His record documents no acts of valor or significant achievement.  However, it does reveal a significant disciplinary history that includes his acceptance of NJP on four separate occasions in addition to the court-martial conviction that led to his discharge.  While the applicant's post-service conduct is noteworthy, given his overall undistinguished record of service, this factor alone does not 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)                                         AR20090016164



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ABCMR Record of Proceedings (cont)                                         AR20090016164



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