BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100022150 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he had a problem with his addiction at the time and he did not know where to go for help.  He made a mistake and had been remorseful for his actions. 

3.  The applicant did not provide any additional documents.

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 17 August 1976 and held military occupational specialty 13B (Cannon Crewman).  He served in Korea from 25 March 1978 to 24 March 1979.
3.  His records show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* On 15 April 1977, for failing to go at the time prescribed to his appointed place of duty and for being drunk while on guard duty
* On 15 June 1977, for twice failing to go at the time prescribed to his appointed place of duty and for being absent from his unit
* On 8 September 1978, for being absent from his unit and for theft
* On 5 October 1978, for violating a general regulation 
* On 15 May 1979, for violating a general regulation

5.  On 29 May 1979, in Korea, he was convicted by a general court-martial of:

* two specifications of disobeying a lawful order from a superior noncommissioned officer
* one specification of disobeying a general regulation (curfew)
* one specification of resisting arrest
* one specification of resisting apprehension
* one specification of larceny
* one specification of communicating a threat
* one specification of offering violence against an officer
* one specification of assault
* one specification of breaking restriction 

The court sentenced him to confinement at hard labor for 2 months, reduction to the lowest enlisted grade, forfeiture of $125.00 pay per month for 3 months, and a bad conduct discharge.

6.  On 16 August 1979, the convening authority approved the sentence 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 appellate review.

7.  On 6 March 1980, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  On 23 June 1980, the U.S. Court of Military Appeals denied his request for a grant of review. 

9.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, General Court-Martial Order Number 31, dated 26 August 1980, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge sentence was ordered executed.

10.  He was accordingly discharged from the Army on 16 September 1980.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial with a bad conduct discharge.  This form further confirms he completed a total of 3 years, 11 months, and 10 days of creditable active service with 51 days of time lost.

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.

12.  Army Regulation 635-200 sets forth the basic policy 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.

13.  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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

5.  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)                                         AR20100022150





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ABCMR Record of Proceedings (cont)                                         AR20100022150



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