IN THE CASE OF:	

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018427 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states:

* he was young and undisciplined
* he did not know what the future held
* he has been married for 26 years and has three children in college
* he coaches pee wee football and is active in his church and community
* he taught kids discipline and self esteem
* he attended one semester of community college 

3.  The applicant provides:

* newspaper article for recognition as outstanding role model
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 31 October 1959.  He enlisted in the Regular Army on 16 March 1979 for a period of 4 years.  He successfully completed training and was awarded military occupational specialty 11B (infantryman).

3.  On 17 January 1980, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay and extra duty.

4.  On 15 May 1980, NJP was imposed against the applicant for behaving with disrespect toward a superior commissioned officer.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay, and extra duty.

5.  On 11 August 1980, NJP was imposed against the applicant for behaving with disrespect toward a superior commissioned officer and offering violence against a superior commissioned officer.  His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty, and restriction.

6.  On 11 January 1982, NJP was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer and disobeying a lawful order.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.

7.  On 31 August 1982, the applicant was convicted by a special court-martial of two specifications of being absent without leave from 15 June 1982 to 20 June 1982 and from 8 August 1982 to 13 August 1982, assaulting a superior noncommissioned officer, and disorderly conduct.  He was sentenced to be reduced to pay grade E-1, to forfeit $200.00 pay per month for 3 months, to be confined at hard labor for 3 months, and to be discharged from the service with a bad conduct discharge.  On 24 September 1982, the convening authority approved the sentence.

8.  On 31 January 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

9.  On 5 May 1983, the convening authority ordered the bad conduct discharge to be executed.

10.  Accordingly, the applicant was discharged with a bad conduct discharge on 17 May 1983 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 3 years, 10 months, and 18 days of creditable active service with 104 days of lost time.

11.  In support of his claim, the applicant provided a newspaper article wherein he was recognized as an outstanding role model for coaching football by a local barber shop.     

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  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.

14.  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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed training.   

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

4.  The applicant's record of service included four NJPs, one special court-martial conviction, and 104 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20090018427





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018427



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1