IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110010310 


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, in effect, that his bad conduct discharge (BCD) be upgraded to a more favorable discharge. 

2.  The applicant states that he served during wartime even though not one shot was fired and came within four seconds of actual nuclear war.  Unfortunately, the sacrifices and contributions of his generation to world peace are not appreciated. He also states that he is pursuing his U.S. citizenship.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 14 February 1959 and enlisted in the Regular Army in Albuquerque, New Mexico on 22 May 1979 for a period of 3 years.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training as a materiel storage and handling specialist at Fort Lee, Virginia before being transferred to Nuernberg, Germany on 19 September 1979.

2.  On 9 February 1980, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully damaging two display windows belonging to German Nationals in Nuernberg.

3.  On 29 July 1980, NJP was imposed against him for being disrespectful in language towards a superior noncommissioned officer (NCO) and three specifications of leaving his guard post before being properly relieved.

4.  On 6 January 1981, the applicant went absent without leave (AWOL) and remained absent until 29 January 1981.  He went AWOL again on 30 January 1981 and remained absent in a desertion status until he surrendered to military authorities at Fort Bliss, Texas on 20 May 1981.  He was transferred to Fort Sill, Oklahoma, where charges were preferred against him.

5.  On 20 July 1981, the applicant was convicted by a special court-martial of breaking restriction on 10 June 1981 of being AWOL from 6 January to 29 January 1981 and 30 January to 20 May 1981.  He was sentenced to a forfeiture of $200 pay for 5 months, confinement at hard labor for 5 months, and a BCD.

6.  On 24 September 1981, the convening authority approved the sentence, but suspended that portion of the sentence pertaining to confinement at hard labor in excess 30 days and a forfeiture of pay in excess of $200 for 3 months, for a period of 6 months, unless sooner vacated.

7.  On 28 December 1981, the U.S. Army Court of Military Review (USACMR) affirmed the findings and sentence as approved by the convening authority.  On 1 April 1982, the convening authority ordered the BCD executed.

8.  On 15 March 1982, the U.S. Court of Military Appeals denied the applicant’s petition for grant of review of the decision of the USACMR.

9.  On 26 April 1982, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 4 months, and 18 days of total active service with 197 days of lost time due to being AWOL and in confinement.

10.  On 25 March 1995, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He indicated that at the time he was serving in the Army he was completely overtaken by alcoholism and he had since completed a 12-step program and been sober more than 3 years.  He was a clean, sober, and productive member of his community.  After reviewing all of the facts and circumstances of the case, the ADRB found no basis to grant clemency in his case and voted unanimously to deny relief on 19 February 1997. 


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  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.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense.

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

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.

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)                                         AR20110010310



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ABCMR Record of Proceedings (cont)                                         AR20110010310



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