IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023980 


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 (BCD) be upgraded to a more favorable discharge.

2.  The applicant states he has been a model citizen since his discharge.  He goes on to state that at the time he was having marital and drinking problems and was undergoing alcohol treatment.  He also states he is sorry for the event that led to his incarceration, but he was young and was having marital and alcohol problems and his wife stabbed him when he caught her cheating on him.  He states the Army ordered her out of the country and the military police were supposed to confiscate her identification card, but they did not.  She went around to all of the Army Reserve bases writing bad checks for which he was blamed.  He further states that while he was in Germany she ran up $10,000.00 in debt and the Army started garnishing his wages.  He states the Army knew he had a drinking problem and he used any means to get a drink, which he regrets and he apologized to his victims in court.  He also states he has been a productive member of society, works two jobs, and has been married for 11 years and has four boys, the oldest of which has served two tours of duty in Iraq.

3.  The applicant provides a handwritten letter explaining his application, a letter from his wife, and a letter from his sister-in-law with 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 31 August 1982 and served as a cannon crewman at Fort Sill, Oklahoma, and in Germany until he was honorably released from active duty at Fort Dix, New Jersey, on 27 June 1986.

3.  He got married on 31 July 1986 and again enlisted in the Regular Army on 12 August 1986 for a period of 3 years and assignment to Fort Campbell, Kentucky.  He was assigned to Fort Campbell until he was transferred to Germany on 2 April 1988 to serve an accompanied (with dependents) tour.

4.  On 13 June 1989, the applicant received a general officer memorandum of reprimand for driving while intoxicated.

5.  On 30 November 1989, orders were published which authorized the early return of his dependent wife to the United States.

6.  On 19 December 1990, he was convicted pursuant to his pleas by a general court-martial of wrongful possession of a switchblade knife on 3 October 1990, being drunk and disorderly on 3 October 1990, conspiracy to commit robbery on 16 October 1990, robbery on 16 November 1990, and being absent without leave from 22 to 23 October 1990.  He was sentenced to confinement for 6 years, reduction to pay grade E-1, forfeiture of all pay and allowances, and a BCD.

7.  On 5 March 1992, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

8.  On 30 June 1992, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review of his case.

9.  On 29 January 1993, the applicant was discharged at the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 8 years and 7 days of total active service.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.

11.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel Separations) 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.

12.  Paragraph 3-7 of Army Regulation 635-200 also 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, he has failed to show sufficient evidence to warrant an upgrade of his discharge through evidence submitted with his application or the evidence of record.

2.  The type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.  A trial by court-martial was warranted by the gravity of the offenses charged.  His 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.

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)                                         AR20100023980



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ABCMR Record of Proceedings (cont)                                         AR20100023980



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