IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20100028131 


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 be upgraded to honorable.

2.  The applicant states he was a young man with no purpose or direction in life.  He entered the military because he thought a change in his environment would do him some good.  He was subsequently assigned to the Republic of Korea where he got into trouble with the locals.  He was arrested for having marijuana and was given nonjudicial punishment (NJP).  Shortly after that, he sold a Korean made padlock to his roommate.  When his locker was subsequently entered and a diamond ring stolen, the applicant was blamed, resulting in his court-martial.  

3.  The applicant further states he wants to go back to college and pursue a career but his 30-year old discharge is disrupting his life.

4.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Clark County Certificate of Training for welding course of study
* Employee of the Month Certificate
* Certificate of Achievement
* Trainee of the Month Certificate
* Extra Miler Award
* 2003 Father of the Year Certificate
* Earnings Statement for November 2008
* Letter of support from his Pastor
* Letter of support from his employer
* Employment résumé

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.  On 12 April 1977, the applicant, at almost 18 years and 10 months of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 67Y (Attack Helicopter Repairman).  He subsequently completed training in MOS 41K (Reproduction Equipment Repair Specialist).

3.  On 26 September 1978, at a special court-martial, the applicant was found guilty of:

* being disorderly
* failing to go to his appointed place of duty
* stealing some rings from another Soldier valued at about $1,560.00
* failing to go twice to his appointed place of duty
* disobeying a lawful order to get a haircut and
* being contemptuous towards a sergeant first class

4.  The Military Judge sentenced the applicant to a bad conduct discharge, to confinement at hard labor for 6 months, and to a forfeiture of $250.00 pay per month for 6 months.  No previous convictions were considered.  The convening authority approved the sentence.

5.  On 29 March 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.


6.  Special Court-Martial Order Number 62, 4th Infantry Division, dated 2 October 1979, indicates that the sentence had been affirmed pursuant to Article 71c.  The sentence pertaining to confinement having been served, the sentence to a bad conduct discharge was ordered executed.

7.  On 14 November 1979, the applicant was discharged pursuant to his sentence by court-martial.

8.  On 5 March 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  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.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable so that he may receive VA medical benefits because he was a young man with no purpose or direction in life.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.

4.  The applicant’s post-service training and achievements, as well as his letters of support, have been considered.  However, these achievements do not sufficiently mitigate his criminal acts committed during his military service.

5.  The applicant's desire to obtain a college education and to pursue a career 
is not justification upon which to base 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 therefore were appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the above, 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)                                         AR20100028131





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028131



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1