IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100009903 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that even though he had surgery on his right knee and there was a death in his family he was denied emergency leave.  At the time, he was in the field.  His company commander thought he had given him the "bird sign" and offered him nonjudicial punishment (NJP).  He turned down NJP because it was not true.  He wanted to go to court-martial.  At the time all of the unit members were there to give statements for him to take to his lawyer.  His lawyer wanted him to take leave but he refused.  Then he was put on extra duty and was harassed by the company commander.  He needed to get away.  That is why he took his roommates' checks and left.

3.  The applicant provides no additional documentation in support of his application.

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 4 February 1974, the applicant enlisted in the Regular Army (RA).  He completed his initial training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman).

3.  On 6 September 1974, the applicant departed Fort Polk, Louisiana, for duty in the Federal Republic of Germany, where he was assigned to the 2nd Battalion, 36th Infantry Regiment.

4.  On 4 May 1975, the applicant was advanced to specialist four, pay grade E-4.

5.  On 12 August 1975, the applicant accepted nonjudicial punishment for dereliction of duty. 

6.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) or in confinement from:

	a.  3 to 31 December 1975, 31 August to 4 September 1976, and from 
7 September to 20 October 1976 he was AWOL;

	b.  23 October to 6 December 1976 he was confined;

	c.  28 December 1976 to 24 January 1977 he was AWOL;

	d.  25 January 1977 he was confined; and

	e.  28 January to 28 August 1977 he was confined.

7.  On 7 December 1976, the applicant was convicted by a special court-martial of being AWOL in August, September and October 1976.  He received a reduction to private, pay grade E-1 and a forfeiture of $250.00 pay for 2 months.

8.  General Court-Martial Order Number 53, Headquarters, 3rd Armored Division, dated 19 July 1977 shows the applicant pled guilty and he was found guilty of:

	a.  Charge I (seven specifications) for violation of Article 121 (Larceny), Uniform Code of Military Justice (UCMJ), by stealing currency and personal property;

	b. Charge II (six specifications) for violation of Article 123 (Forgery), UCMJ, by making checks with the intent to defraud; and

	c.  Charge III (one specification) for violation of Article 86 (AWOL), UCMJ, by being AWOL from 28 December 1976 to 25 January 1977.

9.  On 6 June 1977, the military judge sentenced the applicant to a bad conduct discharge, confinement at hard labor for 15 months, and a forfeiture of all pay and allowances.

10.  On 19 July 1977, the convening authority approved the sentence.  The execution of that portion of the sentence adjudging confinement at hard labor in excess of 6 months was suspended for 6 months unless sooner vacated.  The forfeitures were to be applied to pay and allowances becoming due on and after the date of approval.

11.  General Court-Martial Order Number 800, U. S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 2 September 1977, remitted the unexecuted portion of the sentence and restored the applicant to duty pending completion of the appellate review process.

12.  On 25 October 1977, the U.S. Army Court of Military Review considered the applicant's entire record and held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

13.  General Court-Martial Order Number 191, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 27 March 1978, affirmed the sentence to a bad conduct discharge, a forfeiture of all pay and allowances becoming due on and after the convening authority's action, and confinement for 15 months, adjudged on 6 June 1977, as promulgated in General Court-Martial Order Number 53, Department of the Army, 3rd Armored Division, APO New York 09039, dated 
19 July 1977.  Article 71(c) having been complied with, the sentence was to be executed.

14.  The applicant's DD Form 214 shows he was discharged from the RA on 
20 June 1979, under the provisions of Army Regulation 635-200, paragraph 
11-2, as a result of court-martial.  He received an under other than honorable conditions characterization of service.

15.  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.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded because he had suffered a death in the family and he was not allowed to go home, then he was harassed by the commander.

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 applicant's discharge appropriately characterizes the misconduct for which he was convicted.

3.  The applicant has not provided any evidence to support his contentions and the available records do not contain any such evidence.

4.  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.
	
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)                                         AR20100009903



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ABCMR Record of Proceedings (cont)                                         AR20100009903



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