IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011369 


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, in effect, upgrade of his bad conduct discharge.

2.  The applicant states he is 49 years old and his life has changed.  At the age of 19, life was different.  He is raising twin daughters because his wife recently died.  He states he has already paid for his misconduct from the court-martial and many years of shame.  He is requesting an upgrade of his discharge because he has been a productive citizen and an inspiration for his daughters.

3.  The applicant provides no documentation 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 enlisted in the Regular Army on 4 October 1977 and was trained in and awarded military occupational specialty 75B (Personnel Administration Specialist).  

3.  On 27 February 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 20 February 1978.

4.  On 19 October 1979, the applicant accepted NJP under Article 15, UCMJ, for: 

* absenting himself from his unit without authority from 23 to 24 September 1979 and from 9 to 16 October 1979
* failing to go at the time prescribed to his appointed place of duty on 2 October 1979
* willfully disobeying a lawful command from a superior commissioned officer on 2 October 1979

5.  On 19 November 1979, the applicant accepted NJP under Article 15, UCMJ, for:

* failing to go at the time prescribed to his appointed place of duty on 8 November 1979
* absenting himself from his unit without authority from 13 to 17 November 1979

6.  Special Court-Martial Order Number 19 issued by Headquarters, 2d Infantry Division, dated 19 February 1980, shows the applicant pleaded guilty to four specifications of violation of Article 86, UCMJ, for absenting himself from his unit without authority from 20 to 25 November 1979, 26 November 1979 to 4 December 1979, 5 to 8 December 1979, and 10 to 11 December 1979.  He was sentenced to be reduced to the grade of E-1, confined at hard labor for 45 days, and separated from the service with a bad conduct discharge.

7.  Special Court-Martial Order Number 30 issued by Headquarters, 7th Infantry Division and Fort Ord, dated 25 February 1982, shows the sentence was affirmed and ordered to be duly executed.  On 8 February 1983, the applicant was discharged accordingly.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or bad conduct) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Army Regulation 635-200, 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.

10.  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.

11.  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 evidence of record does not support the applicant's request for upgrade of his bad conduct discharge.

2.  The applicant was a substandard Soldier with frequent incidents of indiscipline as shown by his acceptance of three NJPs and his conviction by court-martial.

3.  The applicant's repeated unauthorized absences warranted trial by court-martial.  The 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.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100011369



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ABCMR Record of Proceedings (cont)                                         AR20100011369



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