IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090016706
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 (BCD) be changed to an honorable discharge (HD).
2. The applicant states, in effect, that he believes 27 years is long enough to have a BCD in his record and he is sure the court-martial process provided for it to be upgraded if he did not get into any more trouble.
3. The applicant provides no additional 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 applicants 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 applicants 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 in the Regular Army on 27 November 1978, and upon completion of initial entry training he was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman). His record documents no acts of valor or significant achievement.
3. On 17 April 1981, the applicant was convicted by a special court-martial (SPCM) of being absent from his unit, without authority, on the following dates:
a. from 15 October to 23 October 1980;
b. from 27 October to 21 November 1980; and
c. from 22 November 1980 to 26 January 1981.
4. The applicant was sentenced to a reduction to private/E-1, confinement at hard labor for 3 months, a forfeiture of $334.00 pay for 3 months, and to be discharged from the Army with a BCD.
5. On 23 June 1981, the court-martial convening authority approved the sentence with the exception of that portion adjudging confinement in excess of
1 month, and suspended the forfeiture portion for 6 months.
6. The applicant was placed in confinement on 17 April 1981 and released from confinement on 11 May 1981. Effective 13 May 1981, he was placed on excess leave pending the appellate review.
7. On 27 August 1981, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.
8. On 10 February 1982, the applicant was discharged with a BCD, under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial. The DD Form 214 he was issued at the time shows he completed a total of
2 years, 7 months, and 6 days of active military service and he accrued 238 days of lost time 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. 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 contends that he understood that his BCD would be upgraded if he did not get into more trouble. However, there is insufficient evidence to support this claim. His court-martial processing documents fail to show he was told or led to believe his discharge would be upgraded if he stayed out of trouble. The Army has never had a policy to automatically upgrade a punitive discharge based on good behavior.
2. The applicant's record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his accrual of 238 days of time lost due to four separate periods of AWOL and confinement. It further shows his trial by court-martial was warranted by the gravity of his offenses.
3. The evidence of record confirms the applicant's conviction and discharge were effected in accordance with applicable law and regulations, and there is no evidence of any error or injustice related to the court-martial process. As a result, there is an insufficient evidentiary basis to support clemency in this case.
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) AR20090016706
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090016706
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100012770
The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3-11, as a result of court-martial. As a result, the board voted to deny his request for an upgrade. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.
ARMY | BCMR | CY2013 | 20130004706
The applicant requests an upgrade of his bad conduct discharge (BCD) to an honorable discharge (HD). On 19 April 1984, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-11, with a BCD in accordance with the affirmed sentence. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2012 | 20120006514
The applicants record is void of any documentation indicating he submitted a formal request for and/or was denied a hardship discharge while serving on active duty. On 22 June 1981, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 11, as a result of a court-martial with a BCD. However, there is no evidence of record supporting the applicants assertion that he requested and was denied a hardship discharge...
ARMY | BCMR | CY2012 | 20120013892
The applicant requests his bad conduct discharge (BCD) be upgraded to an honorable discharge. The evidence of record shows he was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.
ARMY | BCMR | CY2008 | 20080017155
When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge. ABCMR Record of Proceedings (cont) AR20080017155 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080017155 4 ARMY BOARD FOR CORRECTION OF MILITARY...
ARMY | BCMR | CY2013 | 20130009733
His DD Form 214 shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.
ARMY | BCMR | CY2011 | 20110005748
The applicant requests, in two separate applications, upgrade of his bad conduct discharge (BCD). This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. His record shows he was discharged with a BCD as a result of a duly reviewed and affirmed general court-martial conviction.
ARMY | BCMR | CY2010 | 20100030009
IN THE CASE OF: BOARD DATE: 25 August 2011 DOCKET NUMBER: AR20100030009 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). Special court-martial (SPCM) Order Number 110, dated 5 September 1980, shows, on 24 June 1980, he was found guilty of: * Article 86 for failing to go to his prescribed place of duty * Article 90 for disobeying a lawful order * Article 128 for committing assault on another Soldier 7.
ARMY | BCMR | CY2007 | 20070001290
The applicant requests, in effect, that his bad conduct discharge be upgraded to a general or an honorable discharge. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 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.
ARMY | BCMR | CY2012 | 20120011226
IN THE CASE OF: BOARD DATE: 4 January 2013 DOCKET NUMBER: AR20120011226 THE BOARD CONSIDERED THE FOLLOWING 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 applicants failure to timely file within the 3-year statute of limitations if the ABCMR...