IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007296 


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 that his bad conduct discharge be upgraded to honorable.

2.  The applicant states he believes his discharge should be upgraded because the punishment he received was too severe.  He completed 45 months of honorable active duty service prior to his court-martial.  He believes he was not properly represented at his court-martial.  He also believes consideration for his family situation was not taken into account. 

	a.  In an attached statement, the applicant tells of how the recruiter had him enlist for a period of 4 years in order to receive training as an engineer equipment mechanic.  He discovered later that his original desire to enlist for only 3 years would have qualified him for this same training.  After completing basic training and advanced individual training, he was assigned for duty at Fort Rucker, Alabama.  In June 1978, the applicant was assigned for duty with the 2nd Engineer Battalion, located in the Republic of Korea.  After a year in Korea, he was sent to the 29th Engineer Battalion at Fort McPherson, Georgia.  In the fall of 1979 he married his childhood sweetheart, with whom they already had a son.  

	b.  In the spring of 1980, the applicant states he made a very foolish mistake and got into big trouble.  A couple of his buddies and he stole some band equipment and got caught.  They returned everything that they took but it was too late.  They all confessed and received a general court-martial. 

	c.  Before going into confinement, the applicant's wife informed him that she was pregnant.   This complicated his situation.  His attorney told him the best way to get his discharge upgraded, or to possibly return to duty, was to apply for the restoration program.  This was a program for convicts with non-violent crimes.  He got accepted into this program and it changed his life.  He learned to respect the Army and his fellow Soldiers.  In December 1980, he completed the program and was told his chances for being returned to active duty were good.  

	d.  In January 1981, the applicant was informed that his wife was in a coma and had lost their baby.  He was devastated.  The warden offered him a chance to go to his wife in the hospital if he promised to return.  He agreed and went to see his wife.  When his wife died, the warden permitted him to stay for the funeral.  

	e.  In February 1981, the applicant's mother-in-law had requested mercy for him.  As a result, he was released and allowed to go home on excess leave.  At the time he was confused and very emotional.  Hence, he did not ask about his discharge.  He just wanted to get home.  

	f.  He was given a bad conduct discharge.  He contends that he was young and desperate when he committed his crime.  He always believed that his discharge would be upgraded.  He has carried his guilt and shame for almost 
30 years.  He knows he will never be able to right his wrongs, but asks for relief in the form of an under honorable conditions discharge.      

3.  The applicant provides, in support of his application, a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) with a three-page statement and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 25 May 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 62B (Construction Equipment Repairer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

	a.  Item 18 (Appointments and Reductions): that between April 1977 and September 1979 the applicant was reduced from E-2 to E-1; advanced to E-2, 
E-3, and E-4, and again reduced to E-3; and

	b.  Item 21 (Time Lost): that he was absent without leave (AWOL) for 
2 days in May 1977, and for 9 days in July 1979.

4.  General Court-Martial Order Number 5, Headquarters, Fort McPherson, Georgia, dated 4 September 1980 shows that the applicant was arraigned and tried for Charge I (one specification) for violation of Article 121 (larceny), Uniform Code of Military Justice (UCMJ), by stealing property belonging to three other Soldiers and to the United States government, totaling approximately $3,096.00; and for Charge II (one specification) for violation of Article 130 (Housebreaking), UCMJ, by unlawfully entering the rooms of four other Soldiers with the intent to commit a criminal offense. 

	a.  The applicant pleaded guilty to Charge I and its specification except for the words "one set of pro-line Series Acu-Darts of a value of about $35.00…one Rollins Baseball Glove, of a value of about $35.00…one Savings Account Book, of some value, one Farmers Insurance Company Policy, of some value" substituting the words $3,026.00 for the total amount contained in the specification.

	b.  The applicant pleaded guilty to Charge II and its specification.

	c.  The applicant was found guilty of both charges and specifications, as worded in his plea of guilty.

	d.  The applicant was sentenced to reduction to the pay grade of E-1, confinement at hard labor for 1 year; forfeiture of all pay and allowances, and a bad conduct discharge.  The sentence was adjudged on 25 June 1980.




5.  General Court-Martial Order Number 208, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 25 March 1981, affirmed the sentence to a bad conduct discharge, forfeiture of all pay and allowances becoming due on or after the date of the convening authority's action,  confinement at hard labor for 1 year, and reduction to pay grade E-1, adjudged on 25 June 1980, as promulgated in General Court-Martial Order Number 5, Headquarters, Fort McPherson, Georgia, dated 4 September 1980.  The service of the sentence to confinement at hard labor for 1 year was deferred on 25 June 1980 and the deferment was rescinded on 30 June 1980.   Article 71(c) having been complied with, the sentence was to be executed.  

6.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 15 May 1981, under the provisions of Army Regulation 
635-200, paragraph 11-2, due to court-martial.  He received a bad conduct characterization of service.

7.  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.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 121, for larceny of military property valued at more than $500.00 is a dishonorable discharge and confinement for 10 years.  The maximum punishment for violation of Article 130 for housebreaking is a dishonorable discharge and confinement for 5 years.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because the punishment he received was too severe.  He completed 45 months of honorable active duty service prior to his court-martial.  He believes he was not properly represented at his court-martial.  He also believes consideration for his family situation was not taken into account.

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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's record of service prior to his crimes of larceny and housebreaking is marred with repeated reductions in pay grade and AWOL.  

4.  The applicant has not provided any documentation to corroborate his contention that he was improperly represented at his court-martial.   

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.
	
6.  The applicant's contention that his punishment was too severe is found to be without merit.  The maximum punishment for his crimes could have included confinement for 10 years and a dishonorable discharge, both of which exceed the punishment rendered in his case.

7.  The available evidence shows that the applicant's family situation resulting in the unfortunate loss of his wife and baby occurred after he had been convicted for his crimes. The applicant's own statement relates the warden's understanding and compassion for his situation when he was released without supervision to be with his wife and to attend her funeral.    

8.  In view of the above, the applicant’s request should be denied.







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)                                         AR20100007296





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings