IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018349 


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 believes the discharge he received was too harsh for the incident he was involved in and he should have only received an Article 15.  He also states that he served his 6-month period of confinement for the incident and his discharge should be changed.  The applicant adds that all paperwork related to the incident was burned in his house.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 October 2008.

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 6 years on 31 March 1982.  On 3 May 1982 he was discharged from the DEP and enlisted in the Regular Army for a period of 3 years on 4 May 1982.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).

3.  The applicant’s military personnel records contain a DA Form 4187 (Personnel Action), dated 2 September 1983, subject:  Reduction in Grade, that shows the applicant was reduced to the grade of private (PV2)/pay grade E-2 based on having received a Company Grade Article 15.  (The applicant's military personnel records are absent a copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice].)

4.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows the applicant served in U.S. Army, Europe in Germany from 31 August 1982 through 29 February 1984. Item 21 (Time Lost - Section 972, Title 10, U.S. Code (USC)) shows the applicant was confined by military authorities (CMA) for 86 (sic) days from 23 May through 6 August 1984.

5.  The applicant’s military personnel records contain a copy of Headquarters, 32nd Army Air Defense Command (Germany), Special Court-Martial Order Number 14, dated 6 June 1984, which documents the following charges, pleas, and findings.

     a.  Charge I, Article 128, UCMJ, with the Specification that at Darmstadt, Federal Republic of Germany, on or about 19 February 1984, the applicant did unlawfully place his hand on the face of Private Ava U________ and push her, said offense occurring outside the territorial limits of the United States.  The applicant entered a plea of guilty and was found guilty.

     b.  Charge II, Article 92, UCMJ, with the Specification that, having knowledge of a lawful order issued by Specialist Five Janice A. W_____, to remove himself from the pool table, an order which it was his duty to obey did at Weiterstadt, Federal Republic of Germany, on or about 22 February 1984, did fail to obey the same, said offense occurring outside the territorial limits of the United States. The applicant entered a plea of guilty and was found guilty.

     c.  Charge III, Article 121, UCMJ, with the Specification that at Darmstadt, Federal Republic of Germany, on or about 20 February 1984, did steal United States currency, of a value of about $190.00, the property of Specialist Four Brenda S. J______, said offense occurring outside the territorial limits of the United States.  The applicant entered a plea of guilty and was found guilty.

     d.  On 23 May 1984, sentence was adjudged.  The applicant’s sentence was to be reduced to the grade of private (PV1)/E-1, to forfeit $397.00 pay per month for a period of four months, to be confined at hard labor for a period of four months, and to be discharged from the U.S. Army with a Bad Conduct Discharge.  (No previous convictions considered.)

     e.  On 6 June 1984, the convening authority approved only so much of the sentence as provides for the reduction to the grade of PV1/E-1, confinement at hard labor for three months, forfeiture of $397.00 pay per month for a period of three months, and a Bad Conduct Discharge; ordered the sentence executed; that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review; and the applicant be confined pending completion of the appellate review.

6.  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 Special Court-Martial 20719, Memorandum Opinion, dated 27 February 1985, that shows the Court having found the approved findings of guilty and the sentence correct in law and fact, and having determined on the basis of the entire record that they should be approved, such findings of guilty and the sentence were affirmed.

7.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, Special Court-Martial Order Number 77, dated 10 June 1985.  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.

8.  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 4 May 1982 and was discharged on 12 July 1985 with a bad conduct discharge as a result of court-martial.  This document also shows the applicant had time lost under Title 10, U.S. Code, section 972, from 23 May 1984 through

6 August 1984.  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 2 years, 11 months, and 25 days of net active service;
1 month and 3 days of total prior inactive service; and 1 year, 8 months, and
22 days of foreign service.

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

10.  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.

11.  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.

12.  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.

13.  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 the discharge he received was too harsh for the incident he was involved in and he served his 6-month period of confinement for the incident.

2.  The evidence of record shows the applicant was sentenced, in pertinent part, to be confined at hard labor for a period of four months and that the convening authority approved confinement at hard labor for three months.  The evidence of record also shows the applicant was confined from 23 May through 6 August 1984 and this equates to 76 days or approximately two and one-half months.  Thus, the evidence of record does not support the applicant’s contention that he served a 6-month period of confinement for the incident(s) he was involved in and for which he was convicted by Special Court-Martial.

3.  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.  In this regard, the applicant provides insufficient evidence in support of his claim that the discharge he received was too harsh.

4.  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.  

5.  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.

6.  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)                                         AR20080018349



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ABCMR Record of Proceedings (cont)                                         AR20080018349



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