IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080016337 


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, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, he would like to apologize for the terrible mistake he made.  He also states he was very intoxicated at the time of the incident and, to this day, he does not really remember what happened.  The applicant also acknowledges that he received counseling from his company commander concerning his consumption of alcohol.

     a.  He states that he got married just before he left for Egypt, had great expectations regarding his marriage, and made sure his wife would take care of the finances while he was away.  However, his wife moved back with her parents, left him with nothing, and he became very depressed.

     b.  He states that when he enlisted in the Army it was his goal to retire from the Army and he regrets that he did not fulfill his dream.  The applicant offers his apology and requests another chance to make a difference in this great country.

3.  The applicant provides a self-authored statement, undated.






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 military personnel records show he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for a period of 8 years on 14 December 1984.  On 28 January 1985, the applicant was discharged from the DEP and on 29 January 1985, he enlisted in the Regular Army for a period of 3 years and
14 weeks.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant’s military personnel records show he reenlisted in the Regular Army for a period of 4 years on 28 April 1988.

4.  The applicant’s military personnel records contain a DA Form 4187 (Personnel Action), dated 27 July 1988, that shows the applicant’s duty status was changed from present for duty (PDY) to confined by military authorities (CMA) effective 1600 hours, 26 July 1988.

5.  The applicant’s military personnel records contain a DA Form 4187, dated
19 August 1988, that shows the applicant’s duty status was changed from CMA to PDY effective 1515 hours, 19 August 1988.

6.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows the applicant served in AMEA [Africa – the Middle East – Asia] in the Sinai from 11 May 1987 through
3 November 1987.  Item 21 (Time Lost - Section 972, Title 10, United States Code (USC)) shows the applicant was CMA for 24 days from 26 July 1988 through 19 August 1988.




7.  The applicant’s military personnel records contain a copy of Headquarters,
7th Infantry Division (Light), Fort Ord, California, Special Court-Martial Order Number 81, dated 6 August 1988, which documents the following charges, pleas, and findings.

   a.  Charge I, Article 91, Uniform Code of Military Justice (UCMJ), with the Specification that the applicant did willfully disobey a noncommissioned officer on 3 June 1988.  The applicant entered a plea of guilty and was found guilty.
     
   b.  Charge II, Article 121, UCMJ, with the Specification of larceny of $310.00 in lawful currency on 2 June 1988.  The applicant entered a plea of guilty and was found guilty.

   c.  On 26 July 1988, sentence was adjudged.  The applicant’s sentence was to be reduced to the grade of private (PV1)/E-1, to forfeit $400.00 pay per month for one month, to be confined for 30 days, and to be discharged from the U.S. Army with a Bad Conduct Discharge.

   d.  On 6 August 1988, the convening authority approved the sentence, except for that portion extending to a bad conduct discharge, and ordered the sentence duly executed.

8.  The applicant’s military personnel records contain a copy of United States Army Court of Military Review, Appellate Military Judges, United States (Appellee) versus [Applicant] in Army Court of Military Review 8801623, Decision, dated 31 October 1988, that shows on consideration of the entire record, the Court held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and those findings of guilty and the sentence were affirmed.

9.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 47, dated 9 March 1989.  This document shows, in pertinent part, the applicant's sentence was affirmed pursuant to Article 66.  This document also shows that the provisions of Article 71(c) having been complied with and the applicant having served that portion of the sentence pertaining to confinement, the bad conduct discharge was ordered duly executed.

10.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 29 January 1985 and was discharged on 21 April 1989 

with a bad conduct discharge as a result of court-martial.  This document also shows the applicant had time lost under Title 10, USC, section 972, from 26 July 1988 through 18 August 1988.  The DD Form 214 shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge).  At the time of his discharge the applicant had completed 4 years and 2 months of net active service, 1 month and 14 days of total prior inactive service, and 5 months and
23 days of foreign service.

11.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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.

13.  Army Regulation 635-200, in effect at the time of the applicant's discharge, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3, Section IV, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

14.  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.  

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the character of service of his discharge should be upgraded because he was experiencing marital and financial problems, and was very intoxicated at the time of the incident.  However, he provides insufficient evidence in support of his contentions.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

3.  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.  

4.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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.



      _________XXX__________
               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)                                         AR20080016337



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ABCMR Record of Proceedings (cont)                                         AR20080016337



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