IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110008358 


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 a general discharge.

2.  The applicant states shortly after his assignment to Fort Lewis, Washington a new company commander arrived and took a dislike to him and several other Soldiers.  The commander did things to humiliate them; he directly threatened the applicant by telling him that he would never complete his enlistment.  Finally, the commander accused him of a burglary that he did not commit, but he could not disprove it.  The commander also came to the stockade to taunt him.  The BCD shattered his dreams of reenlistment.  Although he has tried to be a good worker he had a heart attack at age 46.  Now he needs help with medical care. 

3.  The applicant provides copies of letters of support and/or reference from a lieutenant commander in the U.S. Public Health Service, a retired Air Force master sergeant, and five other individuals.  He also submits copies of several pages of his military medical records.

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 Regular Army on 26 December 1979.  He completed training as an engineering bridge specialist and was stationed in Germany.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: 

* 16 May 1980 for incapacitation due to intoxication
* 25 August 1980 for willfully disobeying a sergeant first class
* 19 November 1980 for damaging military property through neglect 

4.  On 23 November 1982, a special court-martial considered the following charges against the applicant and his pleas:

* Charge 1 –failure to obey an order against cannibalization of vehicle parts 
* Charge 2 – "wrongful appropriation" of a generator from a government vehicle
* Charge 3 – stealing $19 from a fellow Soldier by force and violence 

5.  The applicant pled not guilty to charge 1, and guilty to charges 2 and 3.  The court found the applicant guilty of charge 2 and 3 and not guilty of charge 1.  The military judge sentenced him to a forfeiture of $360 pay for 4 months, confinement for 4 months, and a BCD.

6.  The Staff Judge Advocate reviewed the case and the convening authority approved the findings and sentence, and except for the discharge, ordered the sentence executed. 

7.  The Army Court of Military Review affirmed the finding and sentence on 4 May 1983.

8.  The applicant apparently did not appeal and, on 16 September 1983, Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed.



9.  The letters that the applicant provided indicate he has learned from his mistakes.  He is honest, demonstrates strong work ethics, is professional and reliable, a hard worker, and a good friend.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b states 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.

11.  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 contends the court-martial conviction was the result of the company commander's dislike for him.  However, there is no evidence to support this contention.  

2.  The applicant was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction 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.

3.  Based on his overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  The applicant's letters of support indicated that he is a contributing member of society.  He has learned from his mistakes, he is honest, demonstrates strong work ethics, is professional and reliable, a hard worker, and a good friend.  However, these characteristics alone are not sufficiently mitigating to warrant upgrading his discharge.

5.  While it is recognized that the applicant may have medical needs, discharges are not upgraded solely for the purpose of establishing eligibility for benefits from other agencies.

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)                                         AR20110008358



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ABCMR Record of Proceedings (cont)                                         AR20110008358



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