IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100008485 


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) to a general discharge (GD).

2.  The applicant states he was never provided any medical treatment for his alcohol addiction.  He adds he was not aware at the time he had an addiction.

3.  The applicant provides a copy of 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.  The applicant's records show he enlisted in the Regular Army on 6 September 1979 for a period of 3 years under the station of choice option for Fort Polk, La.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  

3.  On 30 July 1980, the applicant was convicted by a special court-martial for the following charges and specification(s) under the Uniform Code of Military Justice (UCMJ): 

* Article 95, UCMJ, escape from the custody of Military Police Investigator (MPI) M------ F. R------
* Article 134, UCMJ, throwing butter on the ceiling of the dining facility; wrongfully and falsely identify himself as Private W------ P. D----- to MPI
R------; and discharging a claymore mine before the proper range warning was issued
* Article 91, UCMJ, willfully disobeying a lawful order from a noncommissioned officer

4.  The applicant was sentenced to a BCD.  On 11 June 1981, the United States Army Court of Military Review set aside the finding of guilty for throwing butter on the ceiling of the dining facility.  The remaining findings of guilty and sentence were affirmed. 

5.  The available records fail to show that the applicant was ever diagnosed with or displayed symptoms of alcoholism prior to his discharge from the Army.

6.  The applicant's DD Form 214 shows that he was discharged on 24 November 1982, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He had completed 3 years, 2 months, and 19 days of net active service with no time lost.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 states, in pertinent part, that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

9.  Army Regulation 635-200, paragraph 3-7a, 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.

10.  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 because he was unaware he had an alcohol dependency problem for which he never received any treatment.

2.  The applicant's records show he was tried and convicted by a special court-martial for three charges and specification(s) under the UCMJ, of which all but one specification were affirmed.  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 characterizes the misconduct for which the applicant was convicted.

3.  There is no evidence in the available records and the applicant did not provide any evidence that supports his contention he suffered from alcohol dependency while he was in the Army or that his acts of misconduct were the result of alcoholism.

4.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general discharge.  As a result, there is insufficient basis for a grant of clemency in the form of a general discharge.

5.  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 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)                                         AR20100008485



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ABCMR Record of Proceedings (cont)                                         AR20100008485



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