IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090017564 


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 under honorable conditions discharge.

2.  The applicant states that he is barred from receiving medical benefits as a veteran due to his characterization of service.  He states that based on his age, immaturity, and being mentally-challenged at the time of his enlistment, he found himself unable to adjust to military discipline.

3.  In support of his application, the applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), Florida driver's license, social security identification card, birth certificate, and high school diploma.

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 was born on 28 November 1961 and he was 17 years, 8 months, and 29 days old when he enlisted in the Regular Army on 26 July 1979 for a 3-year period of service.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 19 November 1979, the applicant was convicted by a summary court-martial at Fort Dix, NJ, for one specification of stealing a radio and one specification of stealing a traveler's check, the lawful property of an enlisted Soldier.

4.  On 24 March 1981, the applicant was convicted by a special court-martial at Fort Polk, LA, for one specification of unlawfully striking a member of the U.S. Army and for wrongfully communicating a threat to a member of the U.S. Army.  He was sentenced to confinement for 45 days, reduction to the rank of private/pay grade E-1, forfeiture of $150.00 pay per months for 4 months, and a bad conduct discharge.

5.  The convening authority approved the sentence and found that forfeitures shall apply to pay becoming due on and after 28 April 1981.  The remaining confinement and forfeitures were suspended for 6 months pending completion of the appellant review.

6.  On 8 October 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  Headquarters, 5th Infantry Division (Mechanized), and Fort Polk, Special Court-Martial Order Number 11, dated 26 January 1982, shows the applicant's sentence was affirmed and the discharge was ordered to be executed.

8.  On 1 March 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) based on his conviction by a court-martial.  His service was characterized as under other than honorable conditions.  His net active service was 2 years, 4 months and 11 days with 83 days of lost time from 19 November 1979 to 12 December 1979 and from 28 February 1981 to 29 April 1981 with 10 months and 3 days of excess leave.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that, the appellate review must be completed and affirmed sentence 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 evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial.

2.  Law prohibits any redress by this Board of the finality of a court-martial conviction.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The ABCMR does not upgrade discharges based solely on the passage of time or to establish entitlement to other benefits.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge at this time.

4.  The applicant's contention that he was young, immature, and was mentally challenged is without merit.  While the applicant was 17 years old when he enlisted, he successfully completed basic and advanced individual training, and he had been on active duty for almost 2 years when he was sentenced to a bad conduct discharge.  Therefore, he demonstrated he possessed the ability to serve and there is no evidence that he was any less mature than other Soldiers of the same age who completed their service obligations.  There is no medical evidence to support the applicant's contention that he was mentally challenged.
5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090017564



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ABCMR Record of Proceedings (cont)                                         AR20090017564



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