IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100014328 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states that since his discharge from the Army he has been very remorseful about the events that led to his BCD.  He goes on to state that he has endeavored to become a productive and responsible citizen of his country and he currently serves as a merchant marine and has served on some vessels supporting Operation Iraqi Freedom. 

3.  The applicant provides:

* Copies of records from the Army Crime Records Center
* Copies of documents reflecting his accomplishments as a Merchant Marine
* Copies of evaluations as a Merchant Marine
* Copies of Diplomas
* A copy of his college transcript
* Copies of documents from his records

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 12 October 1976 for a period of 4 years, training as a cannon crewman, assignment to Europe and a cash enlistment bonus.  He completed his one-station unit training (OUT) at Fort Sill, Oklahoma and was transferred to Germany.

3.  On 27 June 1980 he reenlisted for a period of 4 years and training as an automated data telecommunications center operator.  He completed his training at Fort Gordon, Georgia and was transferred to Panama on 15 December 1981.  He was promoted to the rank of sergeant on 1 November 1983 and on              13 January 1984 he was transferred to Germany.

4.  On 19 June 1985 nonjudicial punishment (NJP) was imposed against the applicant for being derelict in the performance of his duties by failure to go to his duty site.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay and extra duty.

5.  Although the record of NJP is not present in the available records, his records do show that he was reduced to the pay grade of E-3 on 24 July 1985.

6.  On 6 June 1986 he was convicted by a special court-martial of two specifications of disobeying lawful orders from a superior noncommissioned officer (NCO) and one specification of being disrespectful toward a superior NCO.  He was sentenced to confinement for 3 months, a forfeiture of pay and reduction to the pay grade of E-1.

7.  The actual court-martial order is not present in the available records.  However, his records show that on 25 July 1986 he was convicted by a general court-martial and was sentenced to confinement for 3 months, forfeiture of all pay and allowances, reduction to the pay grade of E-1 and a BCD.  He was transferred to the United States Army Correctional Activity at Fort Riley, Kansas to serve his sentence.

8.  On 13 March 1987 the United States Army Court of Military review affirmed the findings and sentence approved by the convening authority and granted the applicant a 74-day administrative pay credit against the approved sentence to forfeiture.

9.  On 17 July 1987, while the applicant was on excess leave pending appellate review, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 10 years, 4 months, and 5 days of total active service and had approximately 152 days of lost time due to imprisonment.

10.  Title 10, U.s. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.     

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

12.  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 applicant has not disputed the basis for his discharge and in the absence of evidence to the contrary, it must be presumed that trial by court-martial was warranted by the gravity of the offenses charged, that his 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.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate, considering the available facts of the case.

3.  The applicant’s contentions have been noted; however, he has failed to show through evidence submitted with his application or the evidence of record, sufficient evidence to warrant an upgrade of his discharge.  While he is commended for good post-service conduct, that in itself is not sufficient to warrant an act of clemency in this case.

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.  

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)                                         AR20100014328





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ABCMR Record of Proceedings (cont)                                         AR20100014328



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