IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110000551 


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 that will afford him veterans' benefits.

2.  The applicant states, in effect, that he was unjustly convicted of an offense that he did not commit and was unjustly discharged with a BCD and denied the benefits he earned.

3.  The applicant provides a voluminous handwritten application that is difficult at best to interpret.  He also provides documents from his military records, copies of his Department of Veterans Affairs (VA) appeal, and third-party character references, all of which he desires to be returned to him.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 February 1958.  He enlisted in the Regular Army in Kansas City, Missouri, on 3 October 1979 for a period of 3 years.  He completed one-station unit training as a motor transport operator at Fort Leonard Wood, Missouri, and was transferred to Fort Lewis, Washington, for his first duty assignment.

2.  On 20 September 1981, he was transferred to Germany for assignment to an engineer company.  He was advanced to pay grade E-4 on 22 March 1982.  On 21 September 1982, he reenlisted for a period of 3 years.

3.  He departed Germany on 9 September 1983 for assignment to Fort Lewis.  He arrived at Fort Lewis on 7 November 1983.

4.  On 20 June 1984, nonjudicial punishment (NJP) was imposed against him for violating a lawful order (unit policy letter) by having dangerous items (large knives and M-60 firecrackers) in his barracks room.

5.  On 13 November 1984, NJP was imposed against him for failing to go to his place of duty.

6.  On 13 November 1984, the commander initiated action to bar the applicant from reenlistment.  He cited the applicant's frequent traffic violations, that he could not follow orders, that he was recalcitrant, that he failed to manage his personal affairs, that he causes trouble in the civilian community, and that his personal behavior brought discredit upon his unit and the Army as the basis for his recommendation.  The applicant elected not to submit a statement in his own behalf.

7.  On 27 November 1984, NJP was imposed against him for being disrespectful in language towards a superior noncommissioned officer.

8.  The battalion commander approved the bar to reenlistment against the applicant on 27 November 1984.

9.  On 18 January 1985, NJP was imposed against him for three specifications of breaking restriction.

10.  On 29 April 1985, the applicant was convicted by a special court-martial of larceny of a video cassette recorder valued at $280.00.  He was sentenced to a forfeiture of $350.00 pay per month for 4 months, confinement for 100 days, and a BCD.  The convening authority approved the sentence.

11.  Special Court-Martial Order Number 50, Headquarters, 7th Infantry Division (Light) and Fort Ord, dated 30 April 1986, shows the applicant's sentence as corrected by the U.S. Army Court of Military Review Notice of Court-Martial Order Correction, dated 24 January 1986, had been finally affirmed and directed execution of the applicant's BCD.

12.  On 3 July 1986, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 6 years, 6 months, and 10 days of total active service and had 81 days of lost time due to confinement.

13.  At the time of his application to the Board, he was incarcerated in Corcoran State Prison in Corcoran, California.  He has been incarcerated there since 1997.

14.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.

15.  Army Regulation 635-200 (Personnel Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons appear to be appropriate considering the available facts of the case.

3.  The applicant's contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his otherwise undistinguished record of service.

4.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20110000551



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ABCMR Record of Proceedings (cont)                                         AR20110000551



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