IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100028323 


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 his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  In effect, he requests his BCD be removed and replaced by an HD.

2.  The applicant states, in effect, his BCD was upgraded to an HD on 28 May 2003.

3.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 1 April 1981 to 3 October 1983 showing he was honorably released from active duty [Item 18 (Remarks) shows the DD Form 214 was administratively issued on 28 May 2003]
* a DD Form 214 for the period 28 June 1977 to 2 May 2003 showing he was discharged due to court-martial, other

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 had honorable active duty (AD) service in the U.S. Air Force (USAF) from 10 May 1966 through 9 March 1970.  After his release from active duty, he served in the Reserve Components, not on active duty, as follows:

* USAF Reserve from 10 March 1970 to February 1972
* Army National Guard from 30 January 1974 to 13 June 1978
* U.S. Army Reserve (USAR) from 14 June 1978 to 31 March 1981

3.  The applicant was ordered to active duty in the Active Guard Reserve (AGR) program for a 3-year period from 1 April 1981 through 30 March 1984.  He was assigned to the 941st Transportation Company, Charleston, SC as the supply sergeant.

4.  The applicant's records show he was absent without leave (AWOL) from his unit during the period 9 to 30 November 1982 (a total of 22 days).

5.  On 21 December 1982, the applicant was attached to Headquarters Company, Troop Command, U.S. Army Training Center and Fort Jackson, SC for an indefinite period pending a criminal investigation.

6.  The record shows the applicant was being investigated for using his position as a supply sergeant to steal government property which he then sold to civilians.

7.  General Court-Martial Order Number 13, issued by Headquarters, U.S. Army Training Center and Fort Jackson, dated 7 July 1983, shows he was adjudged guilty on 23 May 1983 of violation of:

* Article 86, Uniform Code of Military Justice (UCMJ), for being AWOL from 9 to 30 November 1983
* Article 108, UCMJ, for suffering the loss of government property worth in excess of $100 on or about 30 August 1982
* Article 108, UCMJ, for selling two government tractors, valued at $3,600 each, on or about 15 September 1982
* Article 121, UCMJ, for wrongfully appropriating a 5-ton truck with a trailer on or about 15 September 1982, in order to transport two government tractors

8.  The applicant's sentence, adjudged on 23 May 1983, consisted of a BCD, confinement at hard labor for 1 year and 1 day, a forfeiture of all pay and allowances, and reduction to the grade of E-1.  He served his confinement at the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, KS, from 23 May 1983 through 28 February 1984 (total of 282 days).  He was released from confinement and sent home in an excess leave status without pay on 
29 February 1984 to await appellate action on his court-martial conviction.

9.  General Court-Martial Order Number 8, issued by U.S. Army Training Center and Fort Jackson, dated 27 April 1988, affirmed the applicant's sentence.  The BCD was ordered executed.  Due to administrative error, this was not accomplished until 2 May 2003.

10.  In February 2003, the applicant requested assistance from a Member of Congress to reconstruct a record of his DD Form 214 (service from 1981 to 1984) to establish entitlement to benefits.  U.S. Army Reserve Personnel Command (AR-PERSCOM) issued a DD Form 214 on 28 May 2003 showing an HD for the period 1 April 1981 through 3 October 1983.

11.  Order Number 85-2, issued by USDB, Fort Leavenworth, KS, dated 26 March 2003, discharged the applicant effective 2 May 2003 on an "Excess Leave Discharge (Bad Conduct)."

12.  The applicant's DD Form 214 issued on 2 May 2003 shows the following:

* Item 8a (Last Duty Assignment) – Correctional Holding Detachment
* Item 8b (Station Where Separated) – Fort Leavenworth, KS
* Item 12 (Record of Service):

* a (Date Entered AD This Period) – 28 June 1977
* b (Separation Date This Period) – 2 May 2003

* Item 18 (Remarks):

* Continuous Honorable Active Service:  1 April 1981 to 8 November 1982
* Excess Leave – 7003 days:  29 February 1984 to 2 May 2003

* Item 22 (Official Authorized to Sign) – P. Pxxxxx, Deputy Director, DIA [Directorate of Inmate Administration, USDB]
* Item 24 (Character of Service) – Bad Conduct
* Item 28 (Narrative reason for Separation) – Court-Martial, Other

13.  There is no evidence of record which shows his BCD was voided or upgraded by the ABCMR.

14.  Army Regulation 635-200 (Military Awards) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of the regulation provides that a Soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

15.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  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 received a BCD as a result of a general court-martial.  He contends this BCD was upgraded to an HD on 28 May 2003 as evidenced by AR-PERSCOM DD Form 214.  However, there is no evidence his BCD was voided or upgraded.  It appears the AR-PERSCOM DD Form 214 was erroneously administratively issued in response to a Congressional inquiry in 2003.

2.  The 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 he was convicted.

3.  The applicant's discharge was marred by undue administrative delays.  He was convicted on 23 May 1983 and sentenced to confinement.  He served his confinement and was released on 29 February 1984 and sent home to await completion of his appellate review.  That review was completed on 27 April 1988, but the results appear to have been sent to Fort Jackson, not Fort Leavenworth.  Ultimately, it took until 2 May 2003 for the USDB at Fort Leavenworth to execute the discharge and issue the applicant's BCD DD Form 214.

4.  The applicant's 2 May 2003 DD Form 214 (BCD) is his correct discharge; the 28 May 2003 DD Form 214 (HD) is incorrect and may not replace his BCD.

5.  His record of service in the AGR included one general court-martial conviction for serious offenses.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgraded discharge.

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)                                         AR20100028323



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ABCMR Record of Proceedings (cont)                                         AR20100028323



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