IN THE CASE OF:	  

		BOARD DATE:	    4 May 2010

		DOCKET NUMBER:  AR20090018227 


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 prior to his court-martial, he served honorably with no disciplinary history and received above average Enlisted Evaluation Reports and Senior Enlisted Evaluation Reports.  He states that his discharge is inequitable based on his 8 years and 7 months of service without any incidents until his court-martial.

3.  The applicant did not provide any supporting documents with 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 for a 3-year period on 9 May 1974.  He completed basic and advanced individual training meeting the qualification standards for military occupational specialty 19D (Cavalry Scout).  He reenlisted on 14 February 1977 and again on 13 August 1980.

3.  On 1 August 1981, the applicant was assigned to Troop K, 3rd Battalion, 11th Armored Cavalry Regiment, and was stationed in the Federal Republic of Germany.  The applicant's records document no acts of valor or significant achievement.

4.  In July 1982 a bar to reenlistment was imposed by the applicant's chain of command for writing five bad checks between 10 February 1982 and 27 May 1982, for failure to pay just debts to two financial institutions, for poor duty performance, failure to follow instructions, failure to go at time prescribed, lack of accountability of government property, lack of proper maintenance of government property, and exhibiting an overall poor attitude.

5.  On 9 December 1982, the applicant was convicted by a special court-martial at Fulda, Germany, under the authority of Headquarters, V Corps, for one specification of wrongful possession of marihuana between 26 July 1982 and 28 July 1982.  He was sentenced to reduction to the rank of private/pay grade 
E-1, forfeiture of $382.00 pay per month for 6 months, confinement at hard labor for a period of 6 months, and a bad conduct discharge.

6.  On 11 February 1983, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, reduction to the lowest enlisted grade, confinement to hard labor for 2 months, and forfeiture of $382.00 per month for 3 months.  Pending completion of appellate review, the applicant was confined to the U.S. Disciplinary Barracks at Fort Leavenworth, KS.

7.  The U.S. Army Court of Military Review affirmed the findings and the sentence.  On 17 April 1984, Article 71 of the Uniform Code of Military Justice having been complied with, the bad conduct discharge was ordered executed.

8.  On 2 May 1984, the applicant was discharged accordingly.  His net active service for this period was 7 years and 16 days with time lost from 9 December 1982 to 8 February 1983.  He was credited with 456 days of excess leave from 2 February 1983 to 2 May 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) also shows his total prior active service as 2 years, 9 months, and 5 days.



9.  References:

	a.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 and 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 the affirmed sentence ordered duly executed.

	b.  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.

	c.  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 evidence shows the applicant's trial by court-martial was warranted by the gravity of the offense 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 circumstances of the case.

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 contention that he served without any disciplinary infractions until his court-martial is noted by the Board.  However, the evidence of record shows he was barred from reenlistment months before his court-martial for multiple infractions.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offense 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.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge 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)                                         AR20090018227



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ABCMR Record of Proceedings (cont)                                         AR20090018227



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