IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019089 


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 states he did not have the knowledge to stand up for himself in court.  He states it was an "open and shut case" and he did what he was told to do.  He was told he could return and serve his country.  He states he was falsely accused and he believes he could have been represented better, but at the time he did not know any better.

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 7 June 1983
* four pages from his Military Personnel Records Jacket (MPRJ)
* a personal reference submitted to him by email, dated 1 March 2010

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's bad conduct discharge be upgraded.

2.  Counsel states she believes the applicant was in the wrong place at the wrong time and because he was drinking alcohol his thought process was not clear.  She states he was doing no wrong by going to the enlisted men's (EM) club and he did not plan to help rob anyone or any place.  Upon walking back to the barracks he was approached by two other Soldiers who were carrying two bags.  The applicant knew these two Soldiers and one of them asked him to carry back a bag for them and they would get it back later.  They all checked back into the barracks at the same time so this made it seem they were all together.  When he got to his room he then found the bag contained money, but  before he could react to the situation the military police (MP) arrived and charged all three Soldiers with robbery. She states the applicant appeared to be very honest and sincere and the facts never changed.

3.  Counsel states the applicant knew nothing about the legality of his situation and was told "not to dispute the charges against him, do his time and he could return to the military and continue his career."  The applicant told counsel that if he knew he was going to be discharged after doing time he would have stood up for himself and spoke out, but because he was under the impression that if he did what his lawyer told him to do all would have been corrected and he could regain his dignity and prove he was a honest and dedicated Soldier.

4.  Counsel states the applicant is not asking for a change in his discharge status because he wants benefits or feels the government owes him.  He wants it because he wants to set the record straight on what happened that night and he would never have done anything intentionally to bring dishonor to the military, himself, or his family.

5.  Counsel states she believes the applicant did make a wrong decision but due to the alcohol his frame of mind was not clear.  He had never planned to rob anyone or be a part of any robbery then or now.  He was used by the other two Soldiers when he was not mentally strong and unable to make right or wrong decisions due to the alcohol.

6.  Counsel indicated she was sending the transcripts that were made available to her.  However, these transcripts were not attached to the application when received.

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 September 1980 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11C (Indirect fire Infantryman).

3.  On 23 December 1980, the applicant was assigned to the 1st Battalion, 36th Infantry in Germany.

4.  On 22 July 1982, the applicant was tried before a general court-martial.

	a.  He pled guilty and was found guilty of stealing U.S. currency, of a value of about $1,032.50, the property of the U.S Government and Klaus Schilling Amusement Machines Company.

	b.  He pled not guilty and was found not guilty of breaking restriction.

5.  His sentence consisted of:

* reduction to the grade of E-1
* forfeiture of all pay and allowances
* confinement for six months
* discharge from the service with a bad conduct discharge

6.  On 17 September 1982, the convening authority approved the findings and the sentence.

7.  On 30 November 1982, the U.S. Army Court of Military Review affirmed the findings and the sentence of the general court-martial.

8.  On 3 June 1983, the applicant's sentence to a bad conduct discharge was ordered executed.

9.  On 7 June 1983, the applicant was issued a bad conduct discharge.  He had completed 2 years, 3 months, and 25 days of active service.  He had 153 days of lost time due to confinement.

10.  The applicant submitted an email sent to him from his girlfriend at the time of the incident.  She stated the applicant was a very nice person, with real nice manner, and showed a lot of respect for her and her friends.  She states she met some of his fellow Soldiers including his platoon sergeant and squad leader.  She states they all "spoke good" of him and all of his friends, also Soldiers, looked up to him.  He was well respected as a person and a Soldier.  She states that on one particular evening they had said their good nights and then she didn't see him for 3 or 4 days.  She later found that that the applicant was asked by two other Soldiers to carry a bag back to the barracks and this bag was found to contain money from a breaking and entering at the Pizza Hut on the base.  She states his lawyer told him to plead guilty and he would be allowed to stay in the Army and not have to leave Germany.  However, it did not turn out that way.  She visited him in prison while he was still in Germany and then he was transferred to Fort Riley, KS.  She states his leaders wrote letters of recommendation requesting that he be reinstated and have a new trial.  However, unfortunately they could not do it.  She states she has remained best of friends with the applicant since 1982.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, stated that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Army Regulation 635-200 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200 states 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.

14.  Paragraph 154(3) of the Manual for Courts-Martial (MCM) United States 1969 (Revised edition) states it is a general rule that voluntary drunkenness not amounting to legal insanity, whether caused by liquor or drugs, is not an excuse for an offense committed while in that condition.  However, evidence of any degree of voluntary drunkenness may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge or specific intent.

15.  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.

2.  Counsel's statement was reviewed.  However, her description of the events in Germany, including the applicant's interaction with his lawyer at the time, were a history provided by the applicant.  Counsel contends that due to the applicant's use of alcohol his mind was not clear and he was not mentally strong and unable to make right or wrong decisions due to the alcohol.  However, as stated in the MCM, in effect at the time, drunkenness is not a defense for an offense committed while in that condition.  Further, the applicant's statements to the Board are wholly inconsistent with his guilty plea at his court-martial.

3.  The statement from the applicant's girlfriend was reviewed.  While she can attest to the applicant's character, they had "said their good nights" so she was not present when he met with the other two Soldiers.  Therefore, her knowledge of the incidents was not first hand. 

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

5.  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.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's bad conduct 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)                                         AR20100019089



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ABCMR Record of Proceedings (cont)                                         AR20100019089



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