IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110004841 


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).

2.  The applicant states while serving in the Army National Guard (ARNG) he was injured while performing Regular Army training in support of Operation Desert Storm.  The applicant states his commanding officer tried to make him violate his profile which scared him and resulted in his going absent without leave (AWOL).  He further states he was very young when this occurred and it has negatively affected his life.

3.  The applicant provides no additional evidence in support of this 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 enlisted in the U.S. Army Reserve (USAR) on 22 July 1987 at the age of 18.  His records show he completed initial entry training and he was awarded military occupational specialty 13B (Cannon Crewman).  On 17 March 1988, he enlisted in the Louisiana Army National Guard (LAARNG).  On            11 January 1989, he voluntarily transferred to the Illinois Army National Guard  then transferred back to the LAARNG on 10 February 1990.  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.  However, he held the rank/pay grade of private/E-1 at the time of separation.  The applicant was ordered to active duty on 30 November 1990.

3.  The applicant’s record contains an ATSB-SB FL 9578 (Admission of AWOL for Administrative Purposes) form which states the applicant “knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from                 23 December 1990 to 19 August 1991.”  The form is not dated.

4.  On 2 April 1992, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ), AWOL.  The resulting sentence was a reduction to private/E-1, confinement for 30 days, and to be discharged from the service with a Bad Conduct Discharge.

5.  SPCM Order Number 10, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, dated 20 May 1992, shows the sentence was adjudged on 2 April 1992.  The sentence was approved and, except for the part of the sentence extending to the BCD, would be executed.  

6.  On 5 August 1992, the U.S. Army Court of Military Review affirmed the guilty findings and the sentence.
 
7.  On 1 December 1992, the U.S. Court of Military Appeals granted the applicant’s petition for review.  The U.S. Court of Military Appeals affirmed the U.S. Army Court of Military Review on 12 March 1993.

8.  On 31 March 1994, Headquarters, U.S. Army Armor Center and Fort Knox, SPCM Order Number 33 directed that Article 71c having been complied with the BCD be executed and that the portion of the sentence pertaining to confinement had been served.

9.  On 3 June 1994, the applicant was released from active duty and discharged under the provisions of section 4, chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of court-martial with a BCD.  The DD Form 214 he was issued shows he completed a total of 2 years, 11 months, and 16 days of creditable active military service and he had accrued 300 days of lost time.
10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  There is no evidence in the applicant's personnel service record nor did the applicant provide evidence which shows the applicant was injured and on profile while performing training during Operation Desert Storm.  Additionally, there is no evidence which shows the applicant was directed by his commander to violate his profile.  

12.  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 BCD.  It stated a Soldier will 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.

13.  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.

14.  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.  The applicant's contention that his BCD should be upgraded has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  His record shows he was over 18 years of age at the time of his offense.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  Although the applicant alleges that he was injured and on profile while performing training during Operation Desert Storm, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Additionally, there is no evidence which shows the applicant's misconduct was as a direct result of the alleged request from his commander to violate his profile.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

4.  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.

5.  The applicant's trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief.

6.  The available evidence failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated and his discharge upgraded.

7.  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)                                         AR20110004841



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ABCMR Record of Proceedings (cont)                                         AR20110004841



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