IN THE CASE OF:	  

		BOARD DATE:	    27 April 2010

		DOCKET NUMBER:  AR20090018024 


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 upgraded.

2.  The applicant states he was young and made a poor decision.  A lieutenant put his hand on him and he mishandled the situation.  He states he served honorably and with pride.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 in the Regular Army on 19 November 1975 at the age of 21.  He was discharged on 22 May 1978 for the purpose of immediate reenlistment.  

3.  The applicant reenlisted on 23 May 1978 for a period of four years.  

4.  On 5 July 1978, 13 March 1979, and 15 June 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* Disobeying a lawful order from superior noncommissioned officer (NCO) 
* Being disrespectful in language towards his superior NCO.  
* Wrongful possession of marijuana
* Disobeying a lawful order from a staff sergeant
* Behaving with disrespect towards a superior commissioned officer
* Violating a lawful general regulation by having an unauthorized overnight 
   pass
* Violating a general regulation by purchasing 8 ounces of pepper, a 
   controlled item in excess of his prescribed monthly limits

5.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) during the following three periods:

* On 5 July 1979
* 6 July through 7 July 1979
* 3 October through 16 October 1979

6.  On 3 October 1979, the applicant was found guilty, contrary to his pleas, by a special court-martial of committing assault on his superior commissioned officer.  
He was sentenced to be confined at hard labor for 45 days, a forfeiture of $270.00 pay for 4 months, and a BCD.  

7.  The United States Army Court of Military Review affirmed the findings of guilty and the sentence and the court-martial convening authority ordered the BCD to be executed.  

8.  The applicant was discharged on 18 August 1980 under the provisions of Army Regulation 635-200, chapter 11 as a result of court-martial, other.  He completed 2 years, 2 months, and 9 days of creditable active service during the period under review.  He had 16 days of lost time.


9.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board 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, 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’s contention that he was young and made a poor decision was considered.  However, these factors are not sufficiently mitigating to grant the relief requested.

2.  The applicant's trial by court-martial was warranted by the gravity of the offense charged.  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.

3.  The applicant contends he served honorably and with pride.  His service record does shows he served honorably during his first enlistment.  However, his service record included three Article 15s for various offenses and one special court-martial for assault upon his superior commissioned officer during the period under review.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance for Army personnel.  

4.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgrade of his 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)                                         AR20090018024



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ABCMR Record of Proceedings (cont)                                         AR20090018024



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