IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20100030009 


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 an upgrade of his Bad Conduct Discharge (BCD) to an Honorable Discharge. 

2.  He states that during his enlistment in the Army, he was young and made some bad choices; but he has made positive changes in his life and he would like to be given a second chance to change the choices he made in the Army. 

3.  He did not provide any additional documentation in support of his application.  

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.  His military personnel record shows he was born on 22 August 1959.  He enlisted in the New York Army National Guard (NYARNG) on 27 August 1977.  He was age 18 at the time.  He was involuntarily ordered to active duty (AD) on 
14 June 1979, and he began AD on 15 June 1979.

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in Item 
18 (Appointments and Reductions) that the highest rank he attained while serving on AD was private first class/E-3 on 6 November 1979.  

4.  The applicant's record documents no acts of valor or significant achievement warranting special recognition.  It does reveal 360 days of lost time due to imprisonment, absent without leave (AWOL) status, and military confinement.  It also contains documentation showing that he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

	a.  23 January 1980 - he used disrespectful language towards a superior noncommissioned officer and placed his hands on him; and he also disobeyed a lawful order from a commissioned officer and used disrespectful language towards him; and

	b.  3 April 1980 – failed to go to his appointed place of duty and he also struck another Soldier with his fist. 

5.  On 21 May 1980, his chain of command imposed a bar to reenlistment against him.  

6.  Special court-martial (SPCM) Order Number 110, dated 5 September 1980, shows, on 24 June 1980, he was found guilty of:

* Article 86 for failing to go to his prescribed place of duty 
* Article 90 for disobeying a lawful order 
* Article 128 for committing assault on another Soldier 

7.  He was sentenced to reduction to the rank of private/E-1, a forfeiture of pay for 4 months, 4 months in military confinement, and discharge from the service with a BCD.

8.  His record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.  

9.  On 3 October 1980, he was noted to have served his period of confinement and he was restored to duty pending completion of the appellate review. 
10.  A summary court-martial convened on 13 February 1981 and the order shows he was found guilty pursuant to his pleas of Article 134 for three specifications of breaking restriction.   

11.  On 27 May 1981, the U.S. Army Court of Military Review denied his petition for review.

12.  On 14 July 1981, an SPCM found the applicant guilty pursuant to his pleas of:

* violating a lawful order from a superior and using disrespectful language to the same 
* stealing government and personal property 
* two specifications of committing assault upon a superior 
* unlawfully entering a government facility with the intent to commit a criminal offense 
* two specifications by soliciting persons to commit assault upon a superior and for communicating a threat to injure the same 

13.  He was sentenced to 5 months of confinement at hard labor, a forfeiture of 
5 months pay, and reduction to the lowest enlisted grade.  The convening authority reduced the sentence to 4 months of confinement and a forfeiture of pay for 4 months.  He was reduced to private/E-1 and the sentence was ordered executed. 

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, as a result of a court-martial/other with a BCD.  He had completed 1 year, 4 months, and 16 days of net active service; 3 months and 14 days of prior active service; and 1 year, 
6 months, and 5 days of inactive service.  He had a total of 360 days of time lost for being AWOL and in confinement. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time of the applicant's discharge provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated, in pertinent part, that a Soldier would be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.



16.  Title 10, U.S. Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his BCD should be upgraded and he should be given a second chance based on the positive changes that he has made in his life was carefully considered.  However, the evidence is insufficient to support these claims.  

2.  The evidence of record confirms his trials by SPCM were warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable laws and regulations and his rights were protected throughout the court-martial process.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  After a thorough and comprehensive review of the applicant’s military service record it is concluded that given his undistinguished record of military service, characterized by his extensive record of misconduct, coupled with the seriousness of the offenses for which he was convicted during three separate courts-martial actions, clemency would be inappropriate.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030009



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ABCMR Record of Proceedings (cont)                                         AR20100030009



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