IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100014839 


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 an honorable discharge (HD).

2.  The applicant states his battalion was giving him problems, he had problems with his first sergeant, and he was accused of things he did not do.  He tried to change battalions, but the Army would not do it.  He further states an Army magistrate advised him to get his discharge upgraded after 6 months and that the upgrade would be automatic.  It was not, so he is attempting to do so now.  Finally, he states he was not kicked out of the Army.  The magistrate asked if he wanted to be discharged.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement.

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 10 July 1980.  After completing initial entry training, he was awarded military occupational specialty 13B (Cannon Crewman) and, on or about 3 November 1980, assigned for duty in Germany with Battery C, 1st Battalion, 2d Field Artillery.

3.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* 21 October 1981 for failing to go at the time prescribed to his appointed place of duty
* 31 December 1981 for twice willfully disobeying a lawful order from a superior noncommissioned officer

4.  Special Court-Martial Order Number 59, issued by Headquarters, 8th Infantry Division (Mechanized) on 16 July 1982, shows the applicant was charged with:

* eight specifications of violation of Article 86 (Absence Without Leave (AWOL)), UCMJ, for failing to go at the time prescribed to his appointed place of duty  
* eight specifications of violation of Article 91 (Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer), UCMJ
* one specification of violation of Article 134 (General Article), UCMJ

5.  The order shows applicant pleaded not guilty to all charges.  He was found guilty of four specifications of violation of Article 86, UCMJ, and three specifications of violation of Article 91, UCMJ.  He was sentenced to be discharged from the Army with a BCD, to be confined at hard labor for 1 month, to forfeit $367 per month for 3 months, and to be reduced to private/E-1.  The sentence was approved by the Commanding General, 8th Infantry Division (Mechanized) and the applicant was ordered to be confined pending completion of appellate review.

6.  Special Court-Martial Order Number 86, issued by Headquarters, U.S. Army Armor Center and Fort Knox on 26 April 1983, shows the applicant's sentence was affirmed by appellate review and ordered to be duly executed.  On 17 May 1983, he was given a BCD.  He completed 2 years, 7 months, and 26 days of active military service.  

7.  In his self-authored statement, the applicant provides his recollection of his court-martial proceedings.  

	a.  He states he remembers being court-martialed in Mannheim, Germany, and believes he was charged with disrespect.  The judge informed him he could not be dismissed from the military for disrespect, and he was confined for 21 days in Mannheim Prison.  The judge asked him five or six times if he wanted to continue serving in the Armed Services, and the applicant told him he was tired of being mistreated and disrespected within his unit.  The judge told him "on record" that his BCD would be upgraded within 6 months to a year.

	b.  He states the judge told him he could not discharge him for disrespect.  He "volunteered to get out [of] the Army."  He further states, in effect, that although the magistrate told him he could not discharge him for the "offense of disrespect, because it was like a [misdemeanor]," he convinced the judge he wanted to go home.  He states this information is included in the transcript of his court-martial proceedings.  He trusted the judge because the judge told him after the trial that he believed he was having a "serious problem with the unit commander because the [judge] caught them in several lies."  His attorney told him this also, and it is why his sentence included only 21 days in prison.  He had been facing more prison time because of a frivolous charge that had been elevated to a higher degree.

	c.  He states he could have stayed in the Army but chose to be released before his term expired.

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

9.  Army Regulation 635-200, 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.

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.

11.  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 evidence of record does not support the applicant's request for upgrade of his bad conduct discharge.

2.  There are no provisions of law or regulation authorizing the "automatic" upgrade of a discharge imposed as a sentence in the court-martial process.

3.  The applicant was a substandard Soldier with frequent incidents of indiscipline as shown by his acceptance of two NJPs and his conviction by court-martial.  Although he apparently believes he chose to leave military service, contrary to his assertions, the record shows he was found guilty of multiple specifications of two of the charges against him, and sentenced to a BCD.  

4.  The applicant's repeated unauthorized absences and repeated insubordinate conduct warranted trial by court-martial.  The 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.

5.  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.

6.  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)                                         AR20100014839





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ABCMR Record of Proceedings (cont)                                         AR20100014839



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