IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20090019190 


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:

* an upgrade his bad conduct discharge (BCD) to honorable
* a change in the reason of his discharge from "as a result of court-martial" to "expiration of term of service (ETS)"

2.  The applicant states:

	a.  He served on active duty from 9 August 1967 until his ETS on 12 August 1970 when he received an honorable discharge as an E-5.  During this period, he accomplished the following:

		(1)  he was awarded military occupational specialty 11B (light weapons infantryman),

		(2)  he participated in various operations while stationed in the demilitarized zone in Korea, and

		(3)  he was awarded the Combat Infantryman Badge (CIB) and Imjin Scout Insignia.

	b.  He reenlisted on 25 May 1971 and served until 22 January 1982.  He believes he was a good Soldier during this period until he made mistakes at the end.  During this period, he accomplished the following:

		(1)  he served as a squad leader and was promoted to staff sergeant;

		(2)  he received a certificate of appreciation, two letters of commendation, an Order of the Fixed Bayonets certificate, and a certificate of achievement; and

		(3)  he completed the program of instruction at Drill Sergeant School and was awarded the title of drill sergeant.

	c.  He made some mistakes in 1980 by violating the Army's regulations on fraternizing and passing bad checks.  This resulted in a special court-martial on 9 October 1980 and his sentence included a BCD.

	d.  Army Regulation 600-20 (Army Command Policy), paragraph 4-14, indicates that commanders should seek to prevent inappropriate relationships through proper training, but he did not receive any training.  The regulation gives commanders a wide range of responses to inappropriate relationships, including counseling, reprimand, order to cease, reassignment, or adverse action.  The Army chose to utilize the most severe of the responses.

	e.  He returned to civilian life and accomplished the following:

		(1)  From 1981 to 1989, he was employed by Southland Corporation 
(7-Eleven) as a clerk and assistant manager; Borg-Warner Protective Agency Corporation as a security agent; Kline Chevrolet Sales Corporation as an automobile sales representative; and Tidewater Dodge as an automobile sales representative.

		(2)  In 1990 and from 1995 to 1997, he was employed by Polar Bear Distillers as a delivery driver and assistant manager; Absolute Bottled Water Company; Virginia Transit Company as a bus driver; and Greyhound Lines, Incorporated, as a bus driver.

		(3)  He was elected as the Chief Union Representative for Greyhound drivers in Minnesota in 2005 and in 2007; he accepted an offer to manage the Greyhound Bus Station in St. Paul, MN.  He is now the owner of Hunter Transportation and operates the St. Paul Greyhound Bus Station, where he employs five people.

	f.  He was married and divorced and has five children, as well as his fiancée's child.  Although he did not have custody of his children, he kept in touch with them and met all of his financial obligations.

	g.  He has handled his banking relationship with Wells Fargo Bank in St. Paul and credit matters with care and responsibility.  He has been a Mason for several years and received recognition for his work.

	h.  He states that it would be fair and just to grant him clemency and upgrade his discharge from a BCD to honorable.  He was a combat veteran, drill sergeant, and a good Soldier for almost 13 years before making his mistakes in 1980.  He has tried to be a productive law-abiding and Christian member of his community.  His work record is unblemished and successful and his family is wonderful.  He believes clemency is warranted by these facts and circumstances.

3.  The applicant provides the following documents in support of his application:

* certificate for award of the Imjin Scout Insignia
* DA Form 2166-5 (Enlisted Evaluation Report)
* certificate of appreciation, dated 16 June 1978
* letter of commendation, dated 26 June 1978
* certificate for award of the Order of the Fixed Bayonets, dated 27 June 1978
* graduation roster from the Drill Sergeant School Program
* award of title of drill sergeant
* letter of commendation, dated 30 October 1979
* certificate of achievement, dated 20 February 1980
* letter from Vice President of Tidewater Dodge, dated 3 December 1986
* letter from owner of Polar Bear, dated 1 August 2009
* letter from supervisor at Greyhound Lines, Inc., dated 26 January 1998
* child support letter from the State of Virginia, dated 23 August 1999
* 13 character references
* credit report
* Masonic award

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel gives a brief summary of the applicant's military career as documented in the attachments to the application.  Counsel describes the applicant as a beloved family man, a successful entrepreneur, and a respected member of the St. Paul community.  He urges the Board to consider the applicant's entire record in military and civilian life and grant him the clemency of a change to an honorable discharge.



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 9 August 1967.  At the completion of the required training, he was awarded military occupational specialty 11B.  He completed a tour of duty in Korea and was honorably discharged on 12 October 1970 in the rank of sergeant.  The evidence of record shows he was awarded the CIB and the Imjin Scout Insignia during this period.

3.  The applicant again enlisted in the Regular Army on 28 May 1971 and was discharged on 30 May 1974 for immediate reenlistment.  He reenlisted on 31 May 1974 and was promoted to staff sergeant on 16 April 1977.

4.  In March 1979, the applicant completed Drill Sergeant School and performed duties as a drill sergeant at Fort Dix, NJ.

5.  The applicant was discharged on 13 March 1980 for immediate reenlistment.  He reenlisted on 14 March 1980 for a period of 6 years.

6.  On 24 April 1980, the applicant received a letter of reprimand for conduct unbecoming a noncommissioned officer and drill sergeant in that he had sexual relations with two different female trainees.

7.  In October 1980, the applicant was found guilty contrary to his pleas by a special court-martial of the following offenses:

* seven specifications of violating a lawful general regulation by fraternizing with female trainees
* four specifications of making and uttering worthless checks
* four specifications of uttering worthless checks with intent to defraud

8.  The applicant was sentenced to confinement at hard labor for 60 days, forfeiture of $334.00 pay for 6 months, reduction to private/E-1, and a BCD.

9.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) on 9 December 1980.  This period of AWOL is recorded on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  There is no record of nonjudicial punishment for this period of AWOL.

10.  The U.S. Army Court of Military Review affirmed the findings of guilty for charge I of violating a lawful regulation and the additional charge (check).  The court set aside and dismissed additional charge I.  The court reassessed the sentence and affirmed only a BCD, 60 days of confinement at hard labor, reduction to E-1, and forfeiture of $334.00 pay for 5 months.  The court-martial convening authority ordered the BCD to be executed.

11.  The applicant was discharged on 22 January 1982 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of conviction by court-martial.  He completed 1 year, 10 months, and 8 days of creditable active service with 54 days of lost time during the period under review and 13 years, 7 months, and 1 day of total active military service.

12.  His DD Form 214 shows he was issued a separation program designator (SPD) code of JJD (as a result of court-martial).

13.  The applicant provided character references from former employers, friends, neighbors, and family in which he was given many accolades for his exemplary work ethic, high moral character, and dedication to his family and community.

14.  The applicant's service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

15.  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.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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.

18.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time shows the SPD code JJD as shown on the applicant's DD Form 214 specifies the narrative reason "as a result of court-martial, other" and that the authority for discharge under this SPD code is Army Regulation 635-200, chapter 11.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant's contention that he served honorably from August 1967 to August 1970 is correct.  However, his service record shows he received a letter of reprimand for having sexual relations with two female trainees and one special court-martial for several offenses involving fraternizing with female trainees, making and uttering worthless checks, and uttering worthless checks with intent to defraud 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.

3.  The applicant contends that in accordance with the current Army Regulation 600-20, paragraph 4-14, commanders should seek to prevent inappropriate relationships through proper training, but he did not receive any training.  The applicant suggests a less severe separation could have been imposed.  However, the command took action within the regulatory guidance and given the seriousness of his offenses, that action appeared to be warranted.

4.  The applicant contends it would be fair and just to grant him clemency and upgrade his discharge from a BCD to honorable.  However, the evidence of record does not indicate that an error or injustice exists in this case.

5.  The applicant's accomplishments during his tenure on active duty and his post-service conduct are commendable.  However, these factors are not sufficient to warrant the relief requested.

6.  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)                                         AR20090019190



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019190



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1