BOARD DATE:	3 November 2011

		DOCKET NUMBER:  AR20110006406


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 upgrade of his bad conduct discharge (BCD), and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of birth (DOB) as 10 October 1956, instead of 3 March 1978. 

2.  The applicant states:

* his punishment was a little too harsh
* he was absent without leave (AWOL), but he still served his country
* he let his unit and his country down, but he fell in love and got married
* he did not kill anyone and he was not using drugs
* it has been 30 years since his discharge – he should get some kind of credit for the time he served

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.  On 3 March 1978, the applicant enlisted in the Delayed Entry Program (DEP) of the U.S. Army Reserve (USAR).  On 5 July 1978, he enlisted in the Regular Army.  Item 7 (DOB) of his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) shows his DOB as 3 March 1978, the same date he enlisted in the DEP.  Item 11 (DOB) of his DD Form 1966 (Application for Enlistment – Armed Forces of the United States) shows his DOB as 10 October 1956.  

3.  He completed training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operation Specialist).  After an initial tour in Germany, he attended training at Fort Benning, GA and was awarded MOS 11B (Infantryman).  Following MOS training at Fort Benning, he returned to Germany, where he was assigned to Company C, 2nd Battalion, 36th Infantry Regiment, 3rd Armored Division.  

4.  His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 3 occasions:

* on 23 January 1979, for failing to go, at the prescribed time, to his appointed place of duty on 20 January 1979
* on 12 May 1981, for twice failing to go, at the prescribed time, to his appointed place of duty on 22 and 24 April 1981 
* on 28 April 1982, for willfully and unlawfully altering a public record on    28 April 1982

5.  At a special court-martial at Butzbach, Germany, he was charged with, and pled guilty to, a single charge of AWOL, from on or about 20 July 1982 until on or about 9 January 1983.  

6.  On 18 January 1983, the Court found him guilty of the charge and sentenced him to reduction to private (PV1)/E-1, forfeiture of $382.00 pay per month for      3 months, confinement at hard labor for 3 months, and a BCD.

7.  On 9 March 1983, the convening authority approved the sentence and, except for the BCD, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

8.  On 22 March 1983, the unexecuted portion of the approved sentence of confinement at hard labor for 3 months, adjudged on 18 January 1983, as promulgated in Special Court-Martial Order Number 34, not subsequently modified, was remitted. 

9.  On an unknown date in 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.   The U.S. Court of Military Appeals denied his petition for review on 17 October 1983.

10.  Special Court-Martial Order Number 669, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 31 October 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD duly executed.

11.  On 15 November 1983, he was discharged in accordance with the directives of Special Court-Martial Order Number 34.  His DD Form 214 shows he was discharged as a result of court-martial, with a BCD character of service.  This form further shows he completed 4 years, 8 months, and 8 days of net active service during this period of active duty, including approximately 243 days of lost time due to AWOL and confinement.  The highest rank/grade the applicant attained while serving on active duty was specialist four (SP4)/E-4.

12.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7c provides that an under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances.

13.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a BCD 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.  

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.  The evidence of record shows he enlisted in the Regular Army on 5 July 1978, and he cited his DOB as 10 October 1956 on his DD Form 1966.  Since the DOB on his DD Form 4 is an obvious error, it can be presumed that the DOB entry on his DD Form 214 is also incorrect, as a result of clerical error.  As such, it would be appropriate to correct his records so that the DOB represented on his DD Form 214 correlates with the DOB found on his DD Form 1966.

2.  The applicant's request for upgrade of his BCD has been carefully considered; however, there is insufficient evidence to support his request.  

3.  He was given a BCD pursuant to an approved sentence of a special court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

4.  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.

5.  In view of the foregoing, there is insufficient basis to grant the applicant's requested relief for an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 5 of his DD Form 214 to show his DOB as 10 October 1956.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his BCD.




      _________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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110006406



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