IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013547 


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 to a general under honorable conditions discharge.

2.  He states he made bad decisions when he was younger and now he has matured and he is a productive member of society.  He is seeking a discharge upgrade so that he may receive educational and housing assistance from the Department of Veterans Affairs.  Currently, he is a full-time student majoring in substance abuse counseling.

3.  The applicant provides no additional documentation in support of this case.

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.  He enlisted in the Regular Army on 3 May 1977.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 31M (Multichannel Communication Equipment Operator).

3.  On 17 October 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.

4.  On 15 August 1978, he accepted NJP under Article 15, UCMJ, for failing to be at his appointed place of duty.

5.  On 1 November 1978, he accepted NJP under Article 15, UCMJ, for wrongfully detonating firecrackers during quiet hours and wrongfully possessing marijuana.

6.  On 27 December 1978, he accepted NJP under Article 15, UCMJ, for committing assault upon a fellow Soldier.

7.  On 17 April 1979, he was convicted in accordance with his pleas by a special court-martial of two specifications of committing larceny and an additional charge of committing robbery.  His sentence consisted of forfeiture of $250.00 pay per month for 6 months, confinement at hard labor for 4 months, and a bad conduct discharge.

8.  On 6 November 1979, he was convicted in accordance with his pleas by a special court-martial of possessing marijuana and being absent without leave (AWOL) for the period 25 September 1979 through 5 October 1979.  His sentence consisted of forfeiture of $250.00 pay per month for 6 months, confinement at hard labor for 4 months, and a bad conduct discharge.

9.  On 29 November 1979, the U.S. Army Court of Military Review considered his appeal and found that the findings and sentence were correct in law and fact and affirmed the findings and sentence.

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Special Court-Martial Order Number 111, dated 18 July 1980, directed that his bad conduct discharge be executed.

11.  On 21 August 1980, he was separated from the Army with a bad conduct discharge under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial, other.  He completed 2 years, 9 months, and 4 days of creditable active service with 179 days of lost time due to absence without leave and confinement.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  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 by a court-martial convened under the UCMJ.  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 confirms the applicant's trials by court-martial were warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3.  The applicant's entire record of service which included numerous instances of misconduct was considered in this case.  Given the seriousness of the offenses for which he was convicted, there is insufficient basis to warrant the relief requested.

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)                                         AR20100013547



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ABCMR Record of Proceedings (cont)                                         AR20100013547



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