BOARD DATE: 12 August 2010
DOCKET NUMBER: AR20100007109
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 the incident resulting in his discharge was drug and alcohol related. He states he did not have a substance abuse problem before he entered the military and he was not offered any type of treatment options to address his problem. He felt at the time that he had to fit in and using drugs and alcohol was a big part of adjusting to military life. He states he is now a full-time student and has been attending school for 2 years. He states he has been clean and sober for 2 1/2 years and has made significant changes in his life.
3. The applicant provides copies of:
* a certificate for completion of the Harbor Light/Safe Harbor Recovery Program
* a certificate for completion of a computer technician trainee course of instruction
* two grade reports
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 personnel records show he enlisted in the Regular Army on 26 June 1979 for a period of 4 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 31M (Tactical Circuit Controller).
3. The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 7 May 1982, 20 July 1982, and 25 August 1982 for:
* being absent without leave (AWOL) 3-4 May 1982
* failure to go at the time prescribed to his appointed place of duty
* being AWOL 24-25 August 1982
4. On 17 September 1982, the applicant pled guilty before a general court-martial and was found guilty of:
* conspiracy to commit larceny
* larceny
* fraudulently uttering a check with insufficient funds
* wrongfully and falsely altering a military identification card
5. The applicant was sentenced to:
* be reduced to the grade of private/pay grade E-1
* forfeit all pay and allowances
* be confined for 9 months
* be discharged from the service with a bad conduct discharge
6. On 27 October 1982, the convening authority approved the findings and the sentence.
7. On 25 March 1983, the U.S. Army Court of Military Review affirmed the findings and the sentence of the general court-martial.
8. On 22 April 1983, the applicant was given a mental status evaluation. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.
9. On 29 August 1983, the applicant's sentence to a bad conduct discharge was ordered executed.
10. On 19 September 1983, the applicant was issued a bad conduct discharge. He had completed 3 years, 7 months, and 7 days of active service. He had 225 days of lost time due to confinement.
11. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 3, section IV, stated that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
12. Army Regulation 635-200 states 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.
13. 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 because the incident that resulted in his discharge was drug and alcohol related and he was never offered treatment for his substance abuse problem.
2. The applicant was convicted by a general court-martial for conspiracy to commit larceny, larceny, fraudulently uttering a check with insufficient funds, and altering a military identification card. There is no substantive evidence showing these charges were related to a drug and alcohol problem. Therefore, his contention was not considered mitigating in the determination of this case.
3. The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
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.
5. The applicant's post-service achievements and conduct and his statement of being clean and sober for the last 2 1/2 years are noted. However, good post-service conduct alone is not sufficiently mitigating to upgrade a properly-issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.
6. The applicant's entire record of service was considered. There is no record or documentary evidence of acts of valor or achievement. The applicant's misconduct clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. In view of his having accepted nonjudicial punishment on three occasions and his conviction by a general court-martial, his service was unsatisfactory.
7. Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct discharge to a general 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) AR20100007109
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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