BOARD DATE: 16 December 2010
DOCKET NUMBER: AR20100015430
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 his bad conduct discharge be upgraded.
2. The applicant does not make any statements.
3. The applicant provides a letter from the Army Review Boards Agency.
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's records show he enlisted in the Regular Army on 11 February 1988. He completed basic combat and advanced individual training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.
3. His records show he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, and was reduced in rank/grade from PFC to private/E-1 on 24 May 1989.
4. On 8 June 1989, he received a general officer memorandum of reprimand (GOMOR) for driving while drunk on 5 May 1989. On 9 November 1989, he received a second GOMOR for driving while drunk on 23 July 1989.
5. In January 1990, he pled guilty at a special court-martial to one specification of violating a lawful order by operating a motor vehicle with a revoked license and one specification of operating a vehicle while drunk. He was found guilty of both specifications and sentenced to confinement for 6 months, forfeiture of $225.00 per month for 6 months, and a bad conduct discharge.
6. On 16 March 1990, the convening authority approved only so much of the sentence as provided for confinement for 4 months, forfeiture of $225.00 per month for 4 months, and, except for the bad conduct discharge, he ordered it executed. 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.
7. On 8 May 1990, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.
8. Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 151, dated 7 September 1990, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.
9. On 24 October 1990, he was discharged from the Army. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct discharge. This form further shows he completed a total of 2 years, 3 months, and 16 days of creditable military service with 149 days of lost time.
10. 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.
11. 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.
12. 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 contends his bad conduct discharge should be upgraded.
2. The evidence of record shows his trial by a special court-martial was warranted by the gravity of the offenses charged. His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.
3. After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable discharge or a general under honorable conditions discharge. Therefore, there is insufficient basis to upgrade his discharge.
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 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) AR20100015430
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