IN THE CASE OF:	  

		BOARD DATE:	    21 October 2010

		DOCKET NUMBER:  AR20100009899 


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 an upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge (GD).

2.  The applicant states:

   a.  that he served two years with one of his company commanders prior to
departing for an overseas assignment;

   b.  upon return from his overseas assignment, he was reassigned to his old unit where the same commander was still assigned; and

   c.  he and the commander had a run-in and the commander told him “I got you now.”
   
3.  The applicant provides a medical consultation.

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 enlisted in the Regular Army on 24 May 1979.  He was trained in, awarded, and served in military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) confirms, in Item 18 (Appointments & Reductions), he was promoted to sergeant (SGT/E-5) on 21 November 1981.  This was the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 on 6 November 1985.

4.  The DA Form 2-1 shows in item 21 (Time Lost) that the applicant accrued a total of 164 days of time lost due to AWOL and military confinement between
21 May 1985 and 26 December 1986.

5.  Headquarters, 24th Infantry Division, Fort Stewart, GA, Special Court-Martial (SPCM) Order Number 4, dated 15 January 1986, shows the applicant, pursuant to his pleas, was found guilty of the following three charges of violating the indicated Articles of the Uniform Code of Military Justice (UCMJ):

* Article 86 - (5 specifications) for being AWOL on 3 May 1985, leaving his appointed place of duty on 14 May 1985, failing to go at the time prescribed to his appointed place of duty on 15 May 1985, being AWOL from 21 May to 26 June 1985, and being AWOL from 21 July to 19 September 1985
* Article 90 - for disobeying a lawful order given by his superior commissioned officer on 10 May 1985
* Article 92 - for being derelict in the performance of his duties on 15 May 1985

6.  The resultant sentence imposed by the military judge was a BCD, forfeiture of $413.00 pay per month for 3 months, confinement for 119 days, and reduction to PV1/E-1.  The General Court-Martial Convening Authority (GCMCA) approved the sentence and ordered that it be executed with the exception of the portion that provided for the BCD.


7.  On 3 March 1987, GCM Order Number 15, issued by Headquarters, 24th Infantry Division, Fort Stewart, directed that, Article 71c of the UCMJ having been complied with, the BCD portion of the sentence be duly executed.  On 3 March 1987, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant on the date of his discharge shows that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), section IV, as a result of court-martial.  He completed a total of 7 years, 2 months, and 7 days of creditable active military service and accrued 164 days of time lost.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

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 that his BCD should be upgraded to a GD.

2.  The applicant was discharged after completion of the appellate process and only after his sentence was affirmed by the appropriate appellate court.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  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.
4.  Additionally, discharges are not upgraded solely for the purpose of making an individual eligible for benefits offered by another agency.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100009899



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ABCMR Record of Proceedings (cont)                                         AR20100009899



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