BOARD DATE:	28 June 2012

		DOCKET NUMBER:  AR20110022748


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 was falsely accused of a dispute with his first sergeant (1SG).

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

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 24 November 1976, the applicant enlisted in the Regular Army (RA).  On        23 May 1979, he was honorably discharged for the purpose of immediate reenlistment, and on 24 May 1979, he reenlisted in the RA for a 5-year term.  He completed training and was awarded military occupational specialties 52D (Power Generation Equipment Repairer) and 63B (Light Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three separate occasions for multiple instances of misconduct, on 14 September 1979, 30 June 1980, and 18 August 1980.  

4.  On 4 February 1981, at a special court-martial at Fort Belvoir, VA (hereinafter referred to as his first court-martial), he pled:

* "not guilty" to the specification and Charge 1 – violating UCMJ, Article  128 – assault, on or about 15 October 1980
* "not guilty" to the specification and Charge 2 – violating UCMJ, Article  108 – without proper authority, damaging military property of the U.S., on or about 15 October 1980
* "guilty" to the first specification of Charge 3 – violating UCMJ, Article     134 – wrongfully communicating a threat, on or about 16 December 1980
* "not guilty" to the second specification of Charge 3 – violating UCMJ, Article 134 – being incapacitated for the proper performance of his duties, as a result of previous intoxication, on or about 16 December 1980
* "guilty" to Charge 3
* "not guilty" to four specifications of Charge 4 – violating UCMJ, Article    91 – disrespecting a superior noncommissioned officer (NCO) and disobeying a lawful order, on or about 16 December 1980 

5.  On 4 February 1981, the court found him guilty of all specifications and Charges, with the exception of specification 2 of Charge 3, for which he was found not guilty, and sentenced him to be reduced to the rank/grade of private (PVT)/E-1, forfeiture of $334.00 pay per month for 6 months, confinement at hard labor for 6 months, and to be discharged from the Army with a bad conduct discharge.  

6.  On 28 April 1981, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was remanded for confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  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.

7.  On 10 September 1981, at a second special court-martial at Fort Belvoir, VA (hereinafter referred to as his second court-martial), he pled:
* "not guilty" to the specification and Charge 1 – violating UCMJ, Article  109 – willfully and wrongfully damaging private property, on or about         6 July 1981
* "not guilty" to the first specification of Charge 2 – violating UCMJ, Article  134 – wrongfully communicating a threat, on or about 6 July 1981
* "not guilty" to the second specification of Charge 2 – violating UCMJ, Article 134 – wrongfully communicating a threat, on or about 6 July 1981
* "not guilty" to the third specification of Charge 2 – violating UCMJ, Article 134 – wrongfully possessing marijuana, on or about 6 July 1981

8.  On 10 September 1981, the court found him guilty of all specifications and Charges, with the exception of specification 1 of Charge 2, for which he was found not guilty, and sentenced him forfeiture of $200.00 pay per month for         6 months, confinement at hard labor for 3 months, and to be discharged from the Army with a bad conduct discharge.  

9.  On 4 December 1981, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was remanded for confinement at the Installation Detention Facility, Fort George G. Meade, MD.  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.

10.  On 18 December 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his first court-martial.  On an unknown date, the U.S. Court of Military Appeals denied his petition for review.

11.  On 30 July 1982, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his second court-martial.  On     21 November 1983, the U.S. Court of Military Appeals denied his petition for review.

12.  Special Court-Martial Order Number 12, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, dated 2 December 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge, as ordered by Special Court-Martial Order Number 5, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, dated 28 April 1981, was ordered duly executed.

13.  Special Court-Martial Order Number 13, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, dated 5 December 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge, as ordered by Special Court-Martial Order Number 25, Headquarters, U.S. Army Engineer Center and Fort Belvoir, Fort Belvoir, VA, dated 4 December 1981, was ordered duly executed.

14.  On 30 December 1983, he was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The DD Form 214 he was issued shows he completed a total of 6 years, 7 months, and 5 days of total active service.  This form further shows he was discharged with a bad conduct character of service and his discharge resulted from his trial by court-martial.

15.  On 18 August 1998, the Army Discharge Review Board denied his petition for an upgrade of his bad conduct discharge.

16.  Army Regulation 635-200, 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.

17.  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.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization.

18.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a bad conduct discharge 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.

19.  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 applicant was given a bad conduct discharge pursuant to two separate approved sentences by special courts-martial, which were warranted by the gravity of the offenses charged at the time.  His convictions and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was twice convicted.  In both instances, the appellate reviews were completed and the affirmed sentences ordered duly executed.

2.  All requirements of law and regulation were met and his rights were fully protected.  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.  In view of the foregoing, there is insufficient basis to grant relief.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110022748



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