IN THE CASE OF:	  

		BOARD DATE:  27 March 2012

		DOCKET NUMBER:  AR20110019162 


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.

2.  The applicant states he feels his discharge does not accurately depict the nature of his military service and prevents him from improving his quality of life.  Opportunities would be available to him that would enable him to improve his living situation and become a contributing member of society if his discharge were upgraded.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 November 1993.

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's records show he enlisted in the Regular Army on 5 August 1986 having prior active enlisted service from 28 August 1975 to 27 August 1978.  He held military occupational specialty 13B (Cannon Crewmember).  He was assigned to the 1st Battalion, 11th Field Artillery, Fort Lewis, WA, on 28 June 1989.

3.  On 5 February 1991, he was reported as absent without leave (AWOL) from his assigned unit.  On 7 February 1991, he returned to military control.

4.  On 29 April 1999, he was again reported AWOL from his assigned unit.  On 3 May 1991, he was apprehended by the military police and returned to military control.

5.  Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, Special Court-Martial Order Number 6, dated 22 February 1993, shows he pled guilty and was found guilty by a special court-martial on 12 June 1991 of one specification each of larceny, wrongful use of a controlled substance, and AWOL from 2 to 8 May 1991.  He was sentenced to a bad conduct discharge, confinement for 6 months, and reduction to private/E-1.

6.  On 6 May 1993, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, Special Court-Martial Order Number 37, dated 23 September 1993, shows the finding and sentence were affirmed and the bad conduct discharge was ordered to be executed.

8.  On 15 November 1993, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct character of service.  He completed 7 years, 1 month, and 1 day of creditable active service during this period with 76 days of lost time due to AWOL and confinement.

9.  Army Regulation 635-200 sets forth the basic policy governing 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.

10.  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.

11.  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's trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized 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.

2.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  After a review of the applicant's record of service, it is clear his service did not meet the criteria for an honorable or a general discharge or any other character of service other than that which he received.  Therefore, there is an insufficient basis to upgrade his 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)                                         AR20110019162



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ABCMR Record of Proceedings (cont)                                         AR20110019162



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