IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100014307 


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 to a general discharge.

2.  The applicant states his discharge was improper.  He contends he was court-martialed because of his service record and for buying property that he had no knowledge was stolen.  His record was spotless for the last seven months because he stopped drinking.  He did not drink heavily prior to his military life but he is not making any excuses.

3.  The applicant provides no additional documentation.

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 25 June 1976.  He completed his initial training and he was awarded military occupational specialty 13B (Cannon Crewman).  He subsequently served at Fort Stewart, GA.

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows lost time for being:

	a.  absent without leave (AWOL) from 7 to 9 July 1977; and

	b.  in military confinement from 20 November 1978 to 18 January 1979.

4.  His record shows he received five negative counseling statements, a bar to reenlistment, and he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on seven separate occasions.  His offenses included wrongfully possessing marijuana, AWOL, breaking restriction, failing to go at the time prescribed to his appointed place of duty, without authority going from his place of duty, disobeying a lawful command from a commissioned officer, aand disobeying lawful orders from noncommissioned officers.

5.  Special Court-Martial Order Number 10, issued by Headquarters, 24th, Infantry Division, Fort Stewart, dated 23 January 1979, shows he pled guilty to one specification of buying stolen property.  The court found him guilty of this specification and sentenced him to a forfeiture of $279.00 pay per month for
6 months, confinement at hard labor for 6 months, and a bad conduct discharge.

6.  On 23 January 1979, the convening authority approved the sentence of forfeiture of $279.00 pay per month for 6 months, confinement at hard labor for 75 days, and a bad conduct discharge.  The U.S. Army Court of Military Review affirmed the findings and sentence on 10 July 1979.

7.  Special Court-Martial Order Number 99, issued by Headquarters, XVII Airborne Corps, Fort Bragg, NC, dated 16 November 1979, shows his sentence was affirmed and Article 71(c) having been complied with, ordered the bad conduct discharge be executed.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on 3 December 1979 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of court-martial.  He completed 3 years, 3 months, and 7 days of total active service with 63 days of time lost due to AWOL and confinement.

9.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a pattern of misconduct which included, 63 days of time lost, possession of marijuana, and buying stolen property; therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence of record shows his trial by a special court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Contrary to his assertion that he did not know the property he bought was stolen, the applicant pled guilty to that charge and admitted at trial, under oath, that he knew he was buying stolen property.

4.  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.

5.  In view of the foregoing, his 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)                                         AR20100014307



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ABCMR Record of Proceedings (cont)                                         AR20100014307



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