BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000608 


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 his discharge was supposed to be upgraded after 7 years, but to date it has not.

3.  The applicant provides:

* three DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty)
* Honorable Discharge Certificate

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.  Having prior active service, the applicant's records show he enlisted in the Regular Army on 16 November 1983 and he held military occupational specialty 19K (M1 Armor Crewman).  He was assigned to the 2nd Battalion, 37th Armor Regiment, Germany.  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  He was reported as absent without leave (AWOL) from his assigned unit on 13 June 1988 and he was dropped from the Army rolls on 14 July 1988.

4.  On 8 March 1989, he surrendered to military authorities at Fort Knox, KY.

5.  On 15 June 1989, he was reported AWOL and he surrendered to military authorities at Fort Knox, KY on 18 July 1989.

6.  On 27 October 1989, he was convicted by a special court-martial of one specification each of:

* being AWOL from 13 June 1988 to 8 March 1989
* being AWOL from 15 June to 18 July 1989
* wrongfully appropriating in excess of $9,000.00 in U.S. currency on divers occasions

7.  He was sentenced to 5 months of confinement, reduction to private (PVT)/
E-1, and a bad conduct discharge.

8.  On 7 December 1989, the convening authority approved only so much of the sentence as provided for 90 days of confinement and reduction to PVT, and, except for the bad conduct discharge, ordered it executed.

9.  On 28 February 1990, the U.S. Army Court of Military Review ruled on the applicant's appeal, amended the specification of being AWOL from 15 June to 18 July 1989 to 20 June to 18 July 1989, and affirmed the sentence.

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, Special Court-Martial Order Number 91, dated 19 June 1990, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

11.  On 6 August 1990, he was discharged from the Army.  His DD Form 214 for this period of service shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, with a bad conduct characterization of service.  He completed 5 years, 8 months, and 10 days of active service with 494 days of time lost due to AWOL and confinement.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.

14.  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.

15.  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 U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  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.

3.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR 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 review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  Therefore, he is not entitled to the requested 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 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)                                         AR20120000608



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ABCMR Record of Proceedings (cont)                                         AR20120000608



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