IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100030553 


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 (HD).

2.  The applicant states he was offered an upgrade in 1987 and filled out the paperwork, but he never received the upgrade.

3.  The applicant provides no additional evidence 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.  The applicant's record shows he enlisted in the Regular Army on 10 August 1983 and was trained in and awarded military occupational specialty 45G (Fire Control Systems Repairer).

3.  His record shows he was advanced to the rank of private/E-2 on 7 September 1984 and that this is the highest rank he attained while serving on active duty.  His record also shows he was reduced to private/E-1 for cause on 15 November 1985.

4.  The applicant's record shows he earned the Army Service Ribbon during his active duty tenure.  His record documents no acts of valor or significant achievement.

5.  The applicant's disciplinary history includes his accrual of 31 days of lost time due to being absent without leave (AWOL) and in military confinement.

6.  On 29 August 1985, the applicant was AWOL from his unit at Fort Irwin, California.  He remained away for 6 days until being returned to military control on 4 September 1985.

7.  On 15 November 1985, a special court-martial (SPCM) found the applicant guilty of 10 specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by failing to go to his appointed place of duty at the time prescribed on 10 separate occasions between 12 August 1985 and 26 September 1985 and 2 specifications of violating Article 91 of the UCMJ by disobeying a noncommissioned officer on 14 August 1985.  The resulting approved sentence promulgated in Headquarters, National Training Center and Fort Irwin, Fort Irwin, California, was a BCD, confinement for 41 days, forfeiture of two-thirds' pay for 90 days, and reduction to private/E-1.

8.  Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California, SPCM Order Number 5, dated 14 January 1987, directed that Article 71(c) of the UCMJ having been complied with, that the BCD portion of the sentence be duly executed.  On 6 May 1987, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 6 May 1987 shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or BCD.  It stipulated a Soldier would be given a BCD pursuant only to an approved sentence of a general or SPCM 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 that his BCD be upgraded to an HD because he was offered an upgrade in 1987 but never received it has been carefully considered.  However, there is no evidence the applicant was ever offered an upgrade of his discharge.  Further, there are no provisions for an automatic upgrade of a BCD.  Therefore, there is insufficient evidence to support this claim.

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 sentence if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Therefore, based on the gravity of the offenses resulting in his court-martial conviction and BCD, 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.



      _________________________
                 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)                                         AR20100030553



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ABCMR Record of Proceedings (cont)                                         AR20100030553



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