IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000723 


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 that his first enlistment was problem-free and that the incidents occurred during his second enlistment.  He was young and immature at the time; he feels he has paid enough for his errors and would like closure of that part of his life.

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 was born on 31 August 1961 and enlisted in the Regular Army for a period of 3 years at 20 years of age on 4 December 1981. 
He completed basic combat and advanced individual training and was awarded military occupational specialty 57H (Cargo Checker).

3.  His records further show he executed a 3-year reenlistment at 23 years and 6 months of age on 6 September 1984.  The highest rank/grade he attained during his period of military service was specialist four/E-4.

4.  The applicant's awards and decorations were the Army Service Ribbon, Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

5.  On 12 August 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $192.00 pay, 14 days of restriction (suspended), and 14 days of extra duty.

6.  On 20 October 1985, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to obey a lawful general regulation by wrongfully having a female in his room.  His punishment consisted of a reduction to private/E-2 and a suspended forfeiture of $150.00 pay.

7.  On 10 January 1986 at 25 years of age, he pled guilty at a special court-martial at Fort Campbell, KY, to two specifications of larceny of personal property, one specification of wrongfully appropriating personal property, and one specification of being disorderly.  The court sentenced him to a bad conduct discharge, confinement for 5 months, a forfeiture of $400.00 pay per month for 5 months, and a reduction to private/E-1.

8.  On 18 February 1986, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  On 13 May 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, Special Court-Martial Order Number 170, dated 26 August 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.
11.  He was discharged from the Army on 3 September 1986.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial with a bad conduct discharge.  This form further shows he completed a total of 4 years, 4 months, and 25 days of creditable military service and he had 125 days of lost time.

12.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  The applicant contends his bad conduct discharge should be upgraded.

2.  The evidence of record shows he was 20 years of age at the time he enlisted, 23 years of age at the time he reenlisted, and 25 years of age at the time he committed his offenses that led to his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in his records, and he did not provide substantiating evidence, that shows his offenses of larceny, wrongful appropriation, and disorderly conduct were the result of his age.

3.  The evidence of record shows the applicant's trial by special 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 characterized the misconduct for which the applicant was convicted.  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.

4.  It is true that his first enlistment was incident-free; however, after a careful review of his entire record of service, it is clear that his service was marred by various infractions including two instances of NJP and the court-martial that led to his discharge.  This service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's 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)                                         AR20100000723



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)