IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100012049 


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 his discharge be upgraded to a general, under honorable conditions discharge. 

2.  The applicant states it has been over 30 years since his discharge.  He states he has served his time and has paid full restitution.  He states he is a model citizen currently serving as a preacher, an activist, a member of the National Association for the Advancement of Colored People, and a member of the Rainbow Coalition.  He was young and ignorant and had no respect for authority.  He just wanted to take care of his daughter.

3.  The applicant did not provide documentary evidence 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.  The applicant enlisted in Regular Army on 16 November 1978 for a 3-year period of service.  He completed his initial entry training and he was awarded military occupational specialty 76D (Materiel Supply Specialist).  The highest rank he attained was private first class (PFC)/pay grade E-3.  

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three separate occasions for possession of marijuana, being drunk and disorderly in a public place, and being disrespectful in language toward a superior noncommissioned officer.

4.  The applicant's court-martial charge sheet was not filed in his official military personnel file.    

5.  On 21 August 1980, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, because charges had been preferred against him for stealing a blue Pugeot bicycle.  He indicated that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

6.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 29 August 1980 and directed issuance of an under other than honorable conditions discharge.

7.  Prior to his discharge on 1 October 1980, the applicant's commander requested that the applicant be released from his administrative discharge to 


stand trial on new charges because he had committed additional crimes while awaiting separation from the service.

8.  On 14 November 1980, the general court-martial convening authority withdrew and rescinded the applicant's discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.

9.  On 16 December 1980, the applicant was convicted by a special court-martial at Aschaffenburg, Germany, under the authority of Headquarters, 3rd Infantry Division, for disobeying a lawful order and 17 specifications of failure to maintain sufficient funds in his banking account from 14 June 1980 to 18 August 1980.  

10.  The special court-martial sentence adjudged by a military judge reduced the applicant to private/pay grade E-1, ordered a forfeiture of pay in the amount of $344.00 per month for 4 months, confined him to hard labor for 4 months, and ordered a bad conduct discharge.

11.  On 18 February 1981, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to the lowest enlisted grade, forfeiture of $344.00 for two months, and confinement at hard labor for 60 days.  

12.  The U.S. Army Court of Military Review affirmed the applicant's findings of guilty and his sentence on 29 June 1981.  

13.  On 22 January 1982, by Special Court-Martial Order Number 15 issued by 7th Infantry Division and Fort Ord, the applicant's sentence pertaining to his confinement had been served and his bad conduct discharge was ordered to be duly executed.

14.  On 3 September 1982, the applicant was discharged accordingly.  His reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his net active service was 3 years, 7 months and 27 days with time lost from 16 December 1980 to 4 February 1981 and excess leave from 17 February 1981 to 3 September 1982.  Additionally, his original DD Form 214 shows the following entries:

	a.  item 24 (Characterization of Service) UNDER OTHER THAN HONORABLE CONDITIONS;



	b.  item 25 (Separation Authority) Chapter 10, Army Regulation 635-200; and

	c.  item 28 (Narrative Reason for Separation)  ADMINISTRATIVE DISCHARGE CONDUCT TRIABLE BY COURT MARTIAL.

15.  By unanimous vote, the Army Discharge Review Board denied the applicant's request to upgrade his discharge on 4 April 1988.  That board 
determined the applicant's discharge was proper and equitable.  It further directed issuance of a new DD Form 214 to correct his discharge from under other than honorable conditions to a bad conduct discharge as directed by a special court-martial and affirmed by the U.S. Army Court of Military Appeals.   

16.  Accordingly, a new DD Form 214 was prepared which shows the following entries:

   a.  item 24 (Characterization of Service) BAD CONDUCT DISCHARGE

	b.  item 25 (Separation Authority) Chapter 10, Army Regulation 635-200; and

	c.  item 28 (Narrative Reason for Separation)  ADMINISTRATIVE DISCHARGE TRIABLE BY COURT MARTIAL. 

17.  References:

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

	b.  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.



	c.  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 records are 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to a general discharge based on the passage of time and because of his civilian accomplishments since his separation.  

2.  While his original DD Form 214 shows his character of service was UNDER OTHER THAN HONORABLE CONDITONS, a decision by the ADRB on 4 April 1988 corrected his DD Form 214 to show his character of service as a BAD CONDUCT DISCHARGE.  The reissued DD Form 214 continued to carry over other erroneous information, however.   Item 25 shows the separation authority as chapter 10, Army Regulation 635-200 whereas he was separated under the authority of chapter 3 of that regulation; and item 28 indicates he was   administratively discharged, whereas he was punitively discharged. 

3.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his 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)                                         AR20100012049





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012049



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1