IN THE CASE OF:
BOARD DATE: 17 May 2011
DOCKET NUMBER: AR20100027849
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 upgrade of his bad conduct discharge (BCD).
2. The applicant states, in effect:
* he was castrated and bleeding while in the Pearl Harbor jail without any medical treatment
* no one could let him speak at his court-martial
* he lost weight, was helped by the Chaplain
* a field grade officer took away the keys to his room
* he did not assault a noncommissioned officer (NCO)
* his medical records should show the neglect that happened to him while in the Army
* he requests the records to help him get compensation
3. The applicant did not provide any additional documentation.
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 U.S. Army Reserve on 14 September 1979. He completed training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman). He enlisted in the Regular Army on 13 December 1979.
3. The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost)) that he was absent without leave (AWOL) for 14 days (2 June 1982 through 15 June 1982), and 62 days (16 June 1982 through 16 August 1982).
4. Records show the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ), on 6 November 1981, for willful disobedience of a lawful order.
5. On 27 August 1982, he was convicted by a special court-martial of two specifications of AWOL, from 2 June 1982 through 15 June 1982 and from
16 June 1982 through 17 August 1982; one specification of willful disobedience; and one specification of assaulting a superior noncommissioned officer. He was sentenced to a BCD, confinement at hard labor for 75 days, forfeiture of $100.00 per month for 3 months, and reduction to Private/E-1.
6. The findings and sentence were approved as adjudged. The convening authority suspended the remaining confinement on 8 October 1982.
7. On 21 April 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and sentence.
8. Article 71(c) of the UCMJ having been complied with, the applicant's sentence was ordered executed on 29 August 1983.
9. On 25 October 1983, the applicant was discharged with a BCD. He completed a total of 3 years, 10 months, and 14 days of creditable active duty.
10. On 15 December 1997, the Army Discharge Review Board (ADRB) denied the applicant's request to re-characterize his service.
DISCUSSION AND CONCLUSIONS:
1. The applicant has not provided sufficient evidence to substantiate his contention that his BCD should be upgraded.
2. There are no available medical records or other evidence relating to the applicant's medical condition at the time he was charged or separated.
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. 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 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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100027849
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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