IN THE CASE OF:	   

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011526 


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 (BCD) be upgraded to a general discharge.

2.  He states there were several instances where he did not make physical training formations and he takes full responsibility for his actions.  However, on one morning when he was in his barracks, he was told the first sergeant decided to report him as absent without leave (AWOL) and was making an example of him.  He was sent to pre-trial confinement and served time along with others from his unit.  He is not saying he did not possibly deserve what happened, it is just that he was young at the time.  He would like an opportunity to make things right for his wife and children.

3.  He 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.  His military record shows he enlisted in the Regular Army (RA) in pay grade E-1 on 6 November 1997.  On the date of his enlistment in the RA, he was 18 years and 3 months of age.  He completed training and was awarded military occupational specialty 14R (Bradley Linebacker Crewmember).  He was advanced to pay grade E-2 on 12 August 1998.

3.  On 28 December 1998, he was convicted by a general court-martial of:

* eight specifications of failing to go to his appointed place of duty on 12 June 1998; 8 July 1998; 8, 14, 20, and 23 October 1998; and 2 and 4 November 1998
* one specification of absenting himself from his unit from 12 to 13 November 1998
* five specifications of willfully disobeying a lawful order between 23 and 30 October 1998; on 30 October 1998; and on 2, 3, and 5 November 1998
* one specification of behaving with disrespect toward a noncommissioned officer (NCO) on 2 November 1998
* one specification of violating a lawful general regulation on 20 October 1998
* one specification of wrongfully communicating a threat on 20 October 1998

4.  The court sentenced him to confinement for 5 months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a BCD.

5.  On 3 June 1999, the convening authority approved the sentence and, except for the BCD, ordered it executed.  The convening authority credited him with 46 days of confinement against the sentence to confinement.  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.

6.  On an unspecified date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  There is no evidence he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

8.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, Special Court-Martial Order Number 40, dated 6 June 2002, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's BCD sentence executed.

9.  He was discharged from active duty in pay grade E-1 on 15 July 2002 as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, and issued a BCD.  He was credited with completing 4 years, 4 months, and 11 days of net active service and lost time from 13 November to 27 December 1998 and 28 December 1998 to 11 March 1999.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states 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 sentence affirmed before it can be duly executed.

11.  Army Regulation 635-200, paragraph 3-7b, states 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.

12.  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 the applicant enlisted in the RA on 6 November 1997.  On 28 December 1998, he was convicted by a general court-martial of eight specifications of failing to go to his appointed place of duty, one specification of being AWOL, five specifications of willfully disobeying a lawful order, one specification of behaving with disrespect toward an NCO, one specification of violating a lawful general regulation, and one specification of wrongfully communicating a threat.  He was discharged on 15 July 2002 pursuant to the approved sentence of a general court-martial.

2.  His contention that he was young at the time is without merit.  He was 18 years and 3 months of age when he enlisted in the RA.  He was 19 years of age when he was AWOL.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  His trial by court-martial was warranted by the gravity of the offenses charged. 
His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

4.  He provided no evidence to show his discharge is unjust or as a result of improper actions.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general discharge.

5.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to an upgrade of his BCD to a general discharge.

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 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)                                         AR20110011526



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ABCMR Record of Proceedings (cont)                                         AR20110011526



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