IN THE CASE OF:	

		BOARD DATE:	3 May 2011

		DOCKET NUMBER:  AR20100025597


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  honorable.

2.  The applicant states his discharge should be upgraded because he never should have been allowed into the Army due to an erroneous enlistment.
 
3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) effective 15 October 1976, and DD Form 214 effective 10 October 1989. 

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 with the consent of his mother in the United States Army Reserve (USAR) on 21 January 1976.  He completed training and was awarded military occupational specialty (MOS) 76Y (Supply Clerk).  Available records show he had been released from the Custody and Control of the Army, effective 21 June 1975 (Emphasis added), due to a previous erroneous enlistment.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 35 (Current and Previous Assignments) that he was involuntarily ordered to active duty effective 4 September 1979.  He was reported absent without leave (AWOL) on 4 September 1979 and dropped from the rolls (DFR) effective 
3 October 1979.

4.  He subsequently was returned to military control and reassigned to Germany effective 7 November 1979.

5.  On 26 February 1988, he was convicted by a General Court-Martial apparently for a lengthy AWOL and sentenced to a bad conduct discharge (BCD), confinement for three months, forfeiture of all pay and allowances, and reduction to Private E-1.  

6.  The U.S. Army Court of Military Review affirmed the general court-martial findings of guilty and the sentence on 22 February 1989.  

7.  7 September 1989 General Court-Martial Order Number 26, Headquarters U.S. Army Training Center and Fort Dix announced that the applicant's sentence was affirmed and that the sentence was to be executed.  That portion of the sentence pertaining to confinement had been served.

8.  On 10 October 1989, the applicant was discharged with a BCD.

9.  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.

10.  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 discharge should be upgraded because he should have never been allowed into the Army due to an erroneous enlistment.

2.  The applicant was involved in an erroneous enlistment however, available evidence shows that occurred prior to his 21 January 1976 enlistment in the USAR.

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

4.  The applicant does not deny he committed the offense.

5.  His record of service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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 were therefore appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20100007296



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ABCMR Record of Proceedings (cont)                                         AR20100025597



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