IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026428 


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.

2.  The applicant states that he was not given a fair chance.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge) that states, "I would like to change it, because I desire more than a bad conduct discharge." 

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 12 May 1983.  He completed training in military occupational specialty (MOS) 63W as a wheeled vehicle repairer and was stationed in Germany where he served for approximately 41 months and then in Alaska where he was promoted to staff sergeant.   He had been awarded the Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal (3rd Award), National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon (Primary Level), Noncommissioned Officer Professional Development Ribbon (Basic Level), Army Service Ribbon, Overseas Service Ribbon (2nd Award), and the Expert Marksmanship Qualification Badge with Rifle, Pistol and Grenade Bars.  

3.  On 10 March 1995 a special court-martial found the applicant guilty contrary to his pleas of eight specifications of maltreatment of a subordinate and one specification of striking a noncommissioned officer.

4.  The adjudged sentence of reduction to pay grade E-1, forfeiture of $564 per month for 6 months, and a BCD was approved and, except for the BCD, ordered executed. 

5.  On 5 June 1995 the applicant was placed on involuntary excess leave. 

6.  Headquarters, XVIII Airborne Corps and Fort Bragg Special Court-Martial Order Number 19, dated 12 September 1990, confirmed that in the special court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

7.  On 9 May 1997 the applicant was separated with a BCD.  He had completed 13 years, 11 months, and 28 days of creditable active duty.

8.  Army Regulation 635-200 sets forth the basic authority 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.

9.  Paragraph 3-7b of the regulation 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.  

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's 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.

2.  In the absence of evidence to the contrary, it is presumed that the court-martial proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses.

3.  The applicant offered no evidence or argument in support of his request for an upgrade.

4.  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)                                         AR20100026428





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026428



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1