IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110002178 


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 be upgraded to at least a general discharge.

2.  The applicant states:

* He had 3 years of honorable service
* His honorable service as well as his decorations/medals and military education were totally disregarded

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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.  He enlisted in the Regular Army on 20 July 1979 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  On 20 January 1982, he was honorably discharged for immediate reenlistment.  He reenlisted on 21 January 1982 for a period of 
4 years.  

3.  On 2 July 1982, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 6 April 1982 to 4 May 1982.

4.  On 23 August 1983, he was convicted by a special court-martial of:

* Disobeying a lawful command from a commissioned officer
* Disobeying four lawful orders from noncommissioned officers (NCO)
* Disrespectful language towards an NCO 
* Assault
* Communicating three threats to injure

5.  He was sentenced to confinement at hard labor for 30 days, reduction to E-1, and the issuance of a bad conduct discharge.  On 13 October 1983, the convening authority approved the sentence.

6.  On 27 June 1985, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  On 5 November 1985, the convening authority ordered the applicant’s bad conduct discharge executed. 

8.  On 11 December 1985, he was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial with a bad conduct discharge.  He had served a total of 6 years and 20 days of creditable active service with 123 days of time lost.  

9.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Service Ribbon
* NCO Professional Development Ribbon (Primary Level)
* Good Conduct Medal
* Expert Marksmanship Qualification Badge with Hand Grenade Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)


10.  Item 14 (Military Education) of his DD Form 214 shows he completed the 
4-week Primary NCO Course in 1981.

11.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

12.  Army Regulation 635-200, 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.

13.  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.

14.  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.  His decorations/medals, military education, and prior honorable period of service were carefully considered.  However, his record of service during his last enlistment included one NJP, one special court-martial conviction for numerous offenses, and 123 days of lost time.  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, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.



2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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

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)                                         AR20110002178



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ABCMR Record of Proceedings (cont)                                         AR20110002178



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