IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120002079 


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 that his Bad Conduct Discharge (BCD) be upgraded to a more favorable discharge.

2.  The applicant offers no explanation or statements regarding his request. 

3.  The applicant provides two-third party statements in support of his application.

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 was born on 22 September 1958 and enlisted in the Regular Army on 15 May 1979 for a period of 4 years and training as a personnel records specialist.  He was transferred to Fort Jackson, SC to undergo his one-station unit training.  However, he did not complete his training as a personnel records specialist and was recycled to complete advanced individual training (AIT) as an infantryman.  He completed his training as an infantryman at Fort Benning, GA and he was assigned to Fort Campbell, KY for his first duty assignment.

3.  On 21 June 1981, he was transferred to Germany.  He reenlisted on 10 May 1983 for a period of 3 years, assignment to Fort Stewart, GA, and a selective reenlistment bonus.  He departed Germany on 31 May 1983 for assignment to Fort Stewart.  He was promoted to the rank of sergeant on 4 March 1984.

4.  On 22 September 1984, he was transferred to Germany for assignment to an infantry company in the Berlin Brigade.

5.  On 7 February 1985, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military justice for four specifications of failing to go at the time prescribed to his appointed place of duty.

6.  On 14 August 1985, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

7.  On 7 April 1986, the applicant was convicted by a special court-martial of two specifications of failure to repair, being absent without leave (AWOL) from 14 February to 11 March 1986, destruction of private property, assault, communicating a threat, and two specifications of being drunk and disorderly.  He was sentenced to confinement for 100 days, a forfeiture of $400.00 pay per month for 4 months, reduction to the pay grade of E-1, and a BCD.  He was transferred to Fort Knox, Kentucky to serve his confinement.

8.  For reasons not explained in the available records, the applicant withdrew his case from appellate review by the United States Army Court of Military Review.

9.  On 20 January 1987, he was discharged pursuant to a duly affirmed court-martial conviction.  He was credited with 7 years, 4 months, and 18 days of active service and had 107 days of lost time due to AWOL and confinement.  

10.  Army Regulation 635-200 sets forth the basic policy for 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.

11.  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

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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s overall record of service and his letters of support were considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses.

3.  The applicant’s court-martial was legally sufficient to support the findings and sentence as approved by the convening authority.

4.  Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

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)                                         AR20120002079



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ABCMR Record of Proceedings (cont)                                         AR20120002079



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