IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100008383 


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 (BCD) be upgraded to an honorable discharge (HD).

2.  The applicant states that he was overseas on a hardship tour and got into some trouble.  He also indicates that he is now a changed person.

3.  The applicant provides no 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 record shows that he initially enlisted in the Regular Army on 23 February 1977 and continued to serve until he was honorably discharged in the rank of specialist four (SP4) on 5 November 1979.
3.  On 6 November 1979, he immediately reenlisted.  He served in military occupational specialty (MOS) 17C (Field Artillery Target Specialist).

4.  His DA Form 2-1 (Personnel Qualification Record) shows he served in Korea from 24 September 1981 to 18 October 1982.  It also shows that he was reduced in rank on three separate occasions and that his last reduction was to the grade of private (PV1) on 13 January 1983.  

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions (on 20 November 1981, 18 January 1982, and 9 March 1982).

6.  On 19 October 1982, a special court martial (SPCM) found the applicant guilty of violating the following articles of the UCMJ:

* Article 90, disobeying a lawful order of a commissioned officer
* Article 91, disobeying a lawful order of a noncommissioned officer (NCO)
* Article 134, being drunk and disorderly

7.  The resultant sentence was a reduction to the rank of PV1, confinement for
2 months, a forfeiture of $367.00 pay for 2 months, and a BCD.  On 13 January 1983, the SPCM convening authority approved the sentence.

8.  On 5 May 1983, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 2 September 1983, the United States Army Correctional Activity, Fort Riley, Kansas issued an order indicating the sentence had been affirmed pursuant to Article 71c.  The sentence to a bad conduct discharge was ordered executed.

9.  The applicant's DD Form 214 shows he was discharged on 6 October 1983, under the provisions of Army Regulation 635-200, chapter 3, section IV, with a bad conduct characterization of service.

10.  On 17 May 1985, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade.

11.  Army Regulation 635-200 sets forth the basic policy 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.

12.  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.

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 BCD should be upgraded to an HD.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.

4.  Any redress by this BCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.
5.  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)                                         AR20100008383





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)