IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100001233 


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 (BCD).

2.  The applicant states he went absent without leave (AWOL) due to a family emergency and he was trying to keep his marriage together.  He believes under the circumstances he did all he could to try and maintain his marriage.  He was not attempting to elude punishment; he was trying to keep his family together.

3.  The applicant provides no additional documentation in support of his application.

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 19 October 1974.  He was discharged from the USAR DEP on 29 October 1974 and he enlisted in the Regular Army (RA) on 30 October 1974, for 3 years, in pay grade E-1.  He completed training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was advanced to pay grade E-3 on 13 October 1975.

3.  The applicant was arrested by civilian authorities on 8 January 1976 on the charge of possession of cocaine.  He pled guilty and he was placed on 2 years probation.  He was returned to military control on 11 January 1976.

4.  On 12 May 1976, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 5-10 May 1976.  His punishment included a reduction to pay grade E-2, forfeiture of $75.00 pay for one month (suspended for 90 days), and 14 days of extra duty and restriction.

5.  The applicant was honorably released from active duty, in pay grade E-4, on 7 November 1977, for completion of required service, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He was credited with completing 3 years of net active service and 9 days of time lost due to AWOL.

6.  The applicant enlisted in the RA on 5 July 1989, in pay grade E-2.  He completed training and he was awarded MOS 13E (Cannon Fire Direction Specialist).  He served in Germany from 14 November 1989 to 10 January 1990.

7.  In August 1990, the applicant was convicted by a special court-martial of two specifications of being AWOL from 10 January to 30 April 1990 and from 21 May to 11 July 1990; and one specification of larceny of an excess of $4,000.00 in U.S. currency, property of the U.S. Government, between January 1990 through April 1990.  He was sentenced to reduction to pay grade E-1, forfeiture of $482.00 pay per month for three months, confinement for three months, and a BCD.  The sentence was adjudged on 7 August 1990.

8.  On 13 September 1990, the convening authority approved only so much of the sentence as provided for reduction, forfeiture, and confinement for two months, except for the BCD, and ordered it duly executed.

9.  On 19 February 1991, the U.S. Army Court of Military Review approved the findings of guilty and found the sentence correct in law and fact and affirmed the entire sentence, to include the BCD.

10.  Special Army Court-Martial Order Number 80, dated 19 June 1991, published by the U.S. Army Armor Center,  Fort Knox, Kentucky, ordered the applicant’s BCD duly executed and found that the part of the sentence extending to confinement had been served.

11.  On 11 July 1991, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of a court-martial, and issued a BCD.  He was credited with 1 year, 5 months, and 11 days of net active service during the period under review and time lost from 10 January 1990 to 29 April 1990, 21 May 1990 to 10 July 1990, and 13 July 1990 to 27 August 1990.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

13.  Army Regulation 635-200, paragraph 3-7b, provides 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 change a discharge due to matters which should have been raised in the appellate process, 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  Trial by court-martial was warranted by the gravity of the offenses 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.

3.  The evidence of record shows that the applicant was convicted by a special court-martial for two periods of AWOL and larceny of $4,000.00 of U.S. Government currency.  He was discharged pursuant to the sentence of a special court-martial and he was issued a BCD.

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  The applicant has submitted no evidence other than his contentions that has went AWOL due to family problems.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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 from 1989 to 1991 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)                                         AR20100001233



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ABCMR Record of Proceedings (cont)                                         AR20100001233



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