IN THE CASE OF:	  

		BOARD DATE:	      17 June 2010

		DOCKET NUMBER:  AR20090021686 


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 upgrade of his bad conduct discharge to an honorable or general discharge.

2.  The applicant states his punishment was too harsh, he has suffered for
23 years, and he should be granted benefits.  He was charged with drinking on duty and given an Article 15.  He refused the Article 15 and asked for a court-martial because he knew he was innocent and would not be found guilty.  He also contends the bad checks were added on after the initial charge while he was in the stockade.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate for Release or Discharge from Active Duty) for the period ending 18 September 1986
* DD Form 214 (Report of Separation from Active Duty) for the period ending 11 July 1979 
* Summary of Proceedings from the United States Army Court of Military Review (undated and unsigned)
* DA Form 2-1 (Personnel Qualification Record)

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 1 February 1977.  He completed training and he was awarded military occupational specialty (MOS) 11H (heavy anti-armor weapons crewman).  After completing 2 years, 5 months, and 11 days of active service, he reenlisted on 12 July 1979.

3.  The applicant's record reveals an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions between 6 August 1981 and 14 November 1985, and his conviction by two special courts-martial (SPCM).

4.  On 20 May 1985, an SPCM found the applicant guilty of violating Articles 92 and 123a of the UCMJ as follows:

	a.  Article 92 (2 specifications) - wrongfully having a blood-alcohol level above .05 percent while on duty on 12 October 1984 and dereliction of duty by negligently failing to stay awake while on duty as Charge of Quarters on 
8 January 1985; and

	b.  Article 123a (4 specifications) - wrongfully and unlawfully making and uttering a check without sufficient funds in the amount of $20.00 on 10 December 1984, in the amount of $100.00 on 14 December 1984, in the amount of $100.00 on 20 December 1984, and in the amount of $100.00 on 23 December 1984.

   c.  The applicant was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $413.00 pay per month for two months, and to be discharged from the service with a bad conduct discharge.

5.  On 20 November 1985, an SPCM found the applicant guilty of violating Article 86 of the UCMJ for unauthorized absence from 15 July 1985 to


13 September 1985.  He was sentenced to be separated from the Army with a bad conduct discharge, confinement for a period of three months, and forfeiture of $420.00 pay per month for three months.

6.  On 25 July 1986, the sentence adjudged on 20 November 1985, having been affirmed pursuant to Article 71c, the sentence of a bad conduct discharge was ordered executed.

7.  Accordingly, the applicant was discharged on 18 September 1986, under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), Section IV, as a result of court-martial - desertion.  He received a bad conduct characterization of service.

8.  The DD Form 214 issued to the applicant upon his discharge shows he completed 6 years, 8 months, and 27 days of net active service this period with accrual of 158 days of time lost due to AWOL and confinement.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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

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.

12.  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.  The applicant's request to have his bad conduct discharge upgraded to an honorable or a general discharge because his punishment was too harsh was carefully considered; however, there is insufficient evidence to grant relief.

2.  The evidence shows the applicant was found guilty of offenses punishable under UCMJ by an SPCM on two separate occasions and that he accumulated 158 days of time lost due to AWOL and confinement.  Further, the evidence shows no error or injustice related to his SPCM and/or his subsequent discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20090021686



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021686



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1