IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090020162 


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 of his bad conduct discharge. 

2.  The applicant states he feels his discharge was unjust because he was under a lot of stress at the time.  He was a model Soldier but he made a mistake.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

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's records show he enlisted in the Regular Army on 11 April 1978 and held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  His records also show he served in Germany from on or about 4 August 1978 to on or about 12 August 1979.  His awards and decorations include the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  His records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 19 October 1979, for being absent without leave (AWOL) from on or about 12 August 1979 to on or about 18 September 1979.  His punishment consisted of a forfeiture of $100.00 pay, a reduction to private (PV2)/E-2 (suspended for 60 days), and 14 days of restriction and extra duty (suspended for 60 days).

	b.  On 16 September 1980, for being AWOL from on or about 1 September 1980 to on or about 4 September 1980 and twice failing to go at the time prescribed to his appointed place of duty on or about 29 August 1980 and on or about 7 September 1980.  His punishment consisted of a reduction to PV2/E-2, a forfeiture of $125.00 pay, and a suspended 14 days of restriction.

	c.  On 12 January 1981, for dereliction of duties on or about 13 November 1980 and failing to go at the time prescribed to his appointed place of duty on or about 23 November 1980.  His punishment consisted of a forfeiture of $200.00 pay per month for 2 months (2nd month suspended for 30 days), a reduction to private/E-1, and 30 days of restriction and extra duty.  He appealed his punishment on 4 February 1981; however, his appeal was denied on 11 February 1981.

5.  On 11 March 1981, he pled guilty at a special court-martial to three specifications of wrongfully possessing marijuana; three specifications of wrongfully transferring marijuana; and three specifications of wrongfully selling marijuana, on various dates from October through December 1981.  The court sentenced him to confinement at hard labor for 3 months, a forfeiture of $334.00 pay for 6 months, and a bad conduct discharge.  


6.  On 31 March 1981, the convening authority approved a lesser sentence of confinement at hard labor for 45 days, a forfeiture of $334.00 pay per month for 6 months, and a bad conduct discharge, and except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

7.  On 24 June 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 211, dated 16 October 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

9.  The applicant was discharged from the Army on 9 November 1981.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows his character of service as bad conduct.  He completed 3 years, 2 months, and 20 days of creditable military service and he had 130 days of lost time.

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 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows his trial by a special 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 characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Contrary to his contention that he was a model Soldier, the available evidence shows he had a history of misconduct including three instances of NJP and several instances of AWOL.  Additionally, there is no evidence that he was under stress or that he addressed his stress with his chain of command or medical authorities.

4.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He failed to submit evidence that would satisfy this requirement.  As a result, there is insufficient basis to upgrade 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)                                         AR20090020162



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020162



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1