BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018608 


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 discharge under honorable conditions.

2.  The applicant states he was having marital problems.  He was dealing with his wife and the loss of his kids. Things were going wrong in Germany.  He tried to save his marriage and career but failed at both.  He states he asked the chaplain in Germany for help but nothing was done.

3.  The applicant provides no additional evidence in support of his application.

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 4 March 1988 for a period 
of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11M (Fighting Vehicle Infantryman).

3.  On 14 July 1988, the applicant was assigned to the 2nd Battalion, 36th Infantry in Germany.

4.  On 3 October 1989, the applicant pled guilty and was found guilty before a special court-martial of:

* being absent without leave (AWOL) from on or about 9 August 1989 until he was apprehended on 23 August 1989
* resisting apprehension on 23 August 1989
* being AWOL from on or about 28 August 1989 until he was apprehended on 21 September 1989
* violating a lawful general regulation by wrongfully possessing a lock blade knife

5.  His sentence consisted of:

* confinement for 3 months
* a forfeiture of $466 pay for 3 months
* reduction to pay grade E-1
* a bad conduct discharge

6.  On 28 November 1989, the sentence was approved by the convening authority.  On 8 June 1990, the U.S. Army Court of Military Review affirmed the findings and the sentence of the special court-martial.

7.  On 30 August 1990, the applicant's sentence to a bad conduct discharge was ordered executed.

8.  On 2 October 1990, the applicant was issued a bad conduct discharge.  He completed 2 years, 4 months, and 23 days of active service.  He had 101 days of time lost.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.


10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

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 that his bad conduct discharge should be upgraded to a general discharge under honorable conditions.

2.  The applicant's statement concerning his marital problems was noted.  However, there is no evidence that he attempted to obtain assistance from the chaplain or his chain of command.  The applicant was AWOL and he did not return of his own volition from either of his periods of AWOL.  He resisted apprehension on one occasion.  These offenses show his service to be unsatisfactory.

3.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.


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.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct discharge to a general 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 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)                                         AR20100018608



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ABCMR Record of Proceedings (cont)                                         AR20100018608



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