IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100011141 


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.

2.  The applicant states that his discharge should be upgraded due to the passage of time since his discharge.  He has completely changed his demeanor.  He presents himself as being dependable and trustworthy with a good work ethic.

3.  The applicant provides no additional evidence.

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 11 January 1977, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).  He subsequently served at Fort Polk, Louisiana; Fort Ord, California; and in the Federal Republic of Germany.

3.  On 5 January 1982, the applicant was promoted to staff sergeant/pay grade E-6.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) or in confinement as indicated:

	a.  AWOL from 17 to 27 February 1988, 10 to 11 June 1988, 13 to 15 June 1988, and 5 to 22 July 1988; and

	b.  in military confinement from 23 July 1988 to 11 September 1988.

5.  Special Court-Martial Order Number 88, Headquarters, 7th Infantry Division (Light) and Fort Ord, dated 8 September 1988 shows the applicant pled guilty and he was found guilty of:

	a.  Charge I (three specifications) for violation of Article 86 (AWOL), Uniform Code of Military Justice; and

	b.  Charge II (one specification) for violation of Article 121 (wrongful appropriation of private property), Uniform Code of Military Justice.

6.  On 22 August 1988, the court sentenced the applicant to a bad conduct discharge, confinement for 2 months, and reduction to pay grade E-1.

7.  On 8 September 1988, the convening authority approved the sentence and, except for that portion extending to a bad conduct discharge, ordered it executed.  The applicant was credited with 30 days of confinement against the sentence to confinement.

8.  On 28 October 1988, 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.

9.  Special Court-Martial Order Number 32, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 2 February 1989, affirmed the sentence to a bad conduct discharge, confinement for 2 months, and reduction to pay grade E-1 adjudged on 22 August 1988, as promulgated in Special Court-Martial Order Number 88, Headquarters, 7th Infantry Division (Light) and Fort Ord, dated 8 September 1988.  Article 71(c) having been complied with, the sentence was to be executed.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from the Regular Army on 9 February 1989 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial.  He received a bad conduct discharge.

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 bad conduct discharge should be upgraded because of the passage of time and his change of demeanor.  He now presents himself as being dependable and trustworthy with a good work ethic.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  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.  The applicant has not provided any evidence to support his contentions.  The passage of time or evidence of rehabilitation does not justify an upgrade of a properly-administered discharge.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  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)                                         AR20100011141



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ABCMR Record of Proceedings (cont)                                         AR20100011141



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