IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100030048 


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.

2.  The applicant states he regrets the unfortunate circumstances which led to his unfavorable discharge.

3.  The applicant provides no additional evidence.

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 10 October 1984.  He completed one-station unit training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 30 January 1986, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  On 1 February 1986, the applicant received a Bar to Reenlistment Certificate.  Item 10 (Other Factual and Relevant Indications of Untrainability or Unsuitability) states:

* 18 October 1985 – Counseling Statement – failure to obey a lawful order
* 3 December 1985 – Counseling Statement – bad conduct
* 12 December 1985 – Counseling Statement – missing formation

5.  On 26 February 1986, the suspended portion of the applicant's 30 January 1986 NJP was vacated due to the applicant failing to go at the appointed time to his appointed place of duty.

6.  On 16 June 1988, a general court-martial found the applicant guilty of violating Article 86 of the UCMJ by being absent without leave from 6 December 1986 through 25 April 1988.

7.  The resulting sentence was a bad conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.

8.  On 9 September 1988, the U.S. Army Court of Military Review ordered that the court-martial order be corrected to read:

* Charge – Article 85
* Plea – not guilty
* Finding – guilty (Article 86)
* Specification – desertion from 6 December 1986 until 25 April 1988
* Plea – not guilty, but guilty of absence without proper authority
* Finding – not guilty, but guilty of absence without proper authority in violation of Article 86

9.  On 12 September 1988, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  On 2 February 1989, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial with a bad conduct discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 1 month, and 24 days of creditable active military service and he had 786 days of lost time during this period.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or bad conduct discharge.  It stated a Soldier would be given a bad conduct discharge 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 was ordered duly executed.

12.  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 request for an upgrade of his bad conduct discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  In addition, his record reveals a disciplinary history prior to the general court-martial that led to his bad conduct discharge.  Therefore, given the gravity of the offense resulting in his court-martial conviction and bad conduct discharge, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his 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 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)                                         AR20100030048



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ABCMR Record of Proceedings (cont)                                         AR20100030048



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