IN THE CASE OF:
BOARD DATE: 4 November 2010
DOCKET NUMBER: AR20100012410
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 upgrade of his bad conduct discharge (BCD) to a general discharge.
2. The applicant states he has paid his debt to the world. He has been a good person since the incident that led to his court-martial. He made a big mistake, he has been in counseling, and he has done what he needed to correct his life. He needs a second chance.
3. The applicant provides a memorandum from a Licensed Clinical Social Worker (LCSW), dated 1 March 2010.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant first enlisted in the Regular Army on 18 August 1976. He completed training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).
3. He was awarded secondary MOS 64C (Motor Transport Operator) on 7 November 1977. On 19 October 1979, after completion of training, he was awarded primary MOS 71L (Administrative Specialist). His MOS 13B became his secondary MOS and MOS 64C became an additional MOS.
4. The applicant was awarded the Amy Good Conduct Medal on 25 April 1980, for the period 18 August 1976 - 17 August 1979, and he was promoted to specialist five (SP5)/E-5 on 7 June 1980. He reenlisted on 3 December 1981. There is no indication of any disciplinary infractions or negative entries in his record during his first period of service.
5. On 14 December 1982, the applicant was awarded the Army Good Conduct (2nd award), for the period 18 August 1979 - 17 August 1982.
6. On 31 March 1983, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for 2 days. His punishment included a suspended reduction to specialist four (SP4)/E-4.
7. On 7 April 1983, the suspension was vacated due to another incident of being AWOL from 0730, 1 April 1983 through 0730, 2 April 1983.
8. On 23 May 1983, the applicant was placed in military confinement pending trial by a court-martial.
9. The applicant was serving as a finance clerk at Headquarters, Fort Carson, CO when he was charged with conspiring to alter finance and leave records, altering leave records, and accepting money to alter leave records. The specified incidents occurred during the period April though December 1982.
10. On 26 August 1983, a special court-martial with authority to issue a punitive discharge found the applicant guilty of 9 specifications of violating Article 81, UCMJ (conspiracy) and 16 specifications of violating Article 134, UCMJ (conduct prejudicial to good order and discipline in the armed forces). His sentence was reduction to pay grade E-1, forfeiture of $382.00 pay per month for six months, confinement for six months, and a bad conduct discharge.
11. The convening authority approved the sentence on 26 August 1983.
12. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence of the special court-martial on 8 November 1983.
13. On 3 February 1984, while in an AWOL status, the applicant was arrested by civilian authorities for "excessive alcohol content" and served 14 days in civilian confinement. Upon completion of his civilian incarceration he was returned to military control.
14. On 23 February 1984, the applicant received NJP for being AWOL from 21 September 1983 though 17 February 1984.
15. Headquarters, Fort Carson, Special Court-Martial Order Number 23, dated
28 February 1984, states that Article 71c, UCMJ, having been complied with the sentence to a BCD was to be executed.
16. On 5 March 1984, the applicant was discharged with a BCD. He had a total of 6 years, 9 months, and 27 days of total active service with 261 days of time lost.
17. The applicant provides a memorandum from an LCSW attesting to the applicant's attendance at 5 sessions of "Dual Dx Group" at the Centerstone facility in Tennessee.
18. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel. Chapter 3, as in effect at that time, outlines the criteria for characterization of service. Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
19. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.
20. 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 abused a position of special trust as a finance clerk when he not only agreed to alter leave documents but accepted money to do so. This was not a single incident with a single person but at least 18 incidents with a number of Soldiers over a 9-month period.
3. He compounded the misconduct that led to his court-martial by going AWOL on four occasions and being convicted by a civilian court on an alcohol-related charge. His periods of AWOL in itself could have resulted in a court-martial with the issuance of a punitive discharge or an administrative discharge under other than honorable conditions.
4. The applicant's unsupported statement that he has been a good person and the fact he has recently attended some type of therapy at the Centerstone facility in Tennessee is insufficient to mitigate the seriousness of both his court-martial and periods of AWOL.
5. The applicant's discharge as a result of a court-martial was conducted in accordance with law and regulations applicable at the time. The character of his discharge is commensurate with his serious nature of his offenses during his last period of service. The applicant has failed to establish a basis for upgrading his discharge.
6. 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. As a result, clemency is not warranted in this case.
7. 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) AR20100012410
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100012410
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100007109
He had completed 3 years, 7 months, and 7 days of active service. Army Regulation 635-200 states that a general discharge is a separation from the Army under honorable conditions. 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.
ARMY | BCMR | CY2014 | 20140021297
IN THE CASE OF: BOARD DATE: 21 July 2015 DOCKET NUMBER: AR20140021297 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant states, in effect, that his case was an isolated incident and that there were no alcohol/drug treatment services available at the time of his service. Special Court-Martial Order Number 106, dated 3 August 1983, shows the convening authority approved the sentence.
ARMY | BCMR | CY2014 | 20140007054
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. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. ABCMR Record of Proceedings (cont) AR20140007054 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)...
ARMY | BCMR | CY2012 | 20120007954
IN THE CASE OF: BOARD DATE: 25 October 2012 DOCKET NUMBER: AR20120007954 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge to a general or an honorable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2010 | 20100011568
Additionally, he states in 1989 he was medically diagnosed and treated for schizophrenia and now he believes his bad behavior on active duty was the result of this undiagnosed illness. The applicant contends his bad conduct discharge should be upgraded to a general discharge based on the passage of time, his certification as a nurse assistant since his discharge, and his medical diagnosis of schizophrenia. __________X__ ____ ___ CHAIRPERSON I certify that herein is recorded the true and...
ARMY | BCMR | CY2007 | 20070014496
The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant's record shows that he enlisted in the Regular Army and entered active duty on 9 August 1979. Therefore, given his extensive record of misconduct, his undistinguished service record, and the severity of the offenses for which he was convicted, there is an insufficient evidentiary basis to support clemency in this case.
ARMY | BCMR | CY2011 | 20110006406
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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. The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. The evidence of record shows he enlisted in the Regular Army on 5 July 1978, and he cited his DOB as 10...
ARMY | BCMR | CY2008 | AR20080018160
The applicant requests, in effect, that his 1984 bad conduct discharge be upgraded to general, 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. The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.
ARMY | BCMR | CY2003 | 2003086025C070212
EVIDENCE OF RECORD : The applicant's military records show: The applicant was discharged with a bad conduct discharge on 23 August 1984 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, chapter 3, section IV, as a result of court-martial. After reviewing the applicant service record, the Board found no basis upon which to grant clemency and an upgrade of the applicant's discharge.
ARMY | BCMR | CY2001 | 2001057242C070420
EVIDENCE OF RECORD : The applicant's military records show: The record of trial was forwarded to the United States Army Court of Military Review for appellate review. No pay records were available for review.