IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120007225 


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 his bad conduct discharge be upgraded.

2.  The applicant states:

	a.  he has recovered from his alcoholism and has become a productive member of society.  He was suffering from alcoholism which continued for another 14 years after his discharge.  He has been clean since August 1994.    

	b.  he has earned a masters degree and has raised a family.  

	c.  he has had no further criminal activity since 1994.

	d.  at the time of the incident he was a 17-year old kid from an urban environment and single parent home that taught him some very different survival and social skills than those taught in the mainstream of society.  As a result, he embraced a negative outlook of an uncertain future. 

	e.  at the time of his offense, he was awaiting disposition concerning a medical issue.

	f.  he got sober in 1994.  Since that time he has made some great accomplishments.  He is more than halfway in his studies for his doctorate degree.  He has worked for the Mayor's office in the City of Rochester.  His expertise is in youth intervention/prevention.  He is a certified street outreach gang specialist and human resource manager.  He is an active member of his community.

	g.  his life over the last 18 years shows his transformation into being a productive member of society and his resume shows the improvement that has resulted as a consequence of being in long term recovery.  Before 1994, his life was a disaster and ultimately self-destruction was in the horizon.         
 
3.  The applicant provides:

* Court document for name change
* Resume
* Eight character reference letters
* Master degree
* Certificates
* 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.  The applicant was born on 17 March 1961.  He enlisted in the Regular Army on 9 July 1979 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).   

3.  Records show he was placed before a Medical Board on 14 January 1980.  He was found unfit for further military service and his case was referred to a Physical Evaluation Board for disability processing.  

4.  On 5 February 1980, nonjudicial punishment (NJP) was imposed against the applicant for breaking restriction.


5.  On 15 February 1980, he was convicted by a special court-martial of larceny (stole $150.00 from three Soldiers).  He was sentenced to be confined at hard labor for 3 months and to be discharged from the service with a bad conduct discharge.  On 21 March 1980, the convening authority approved the sentence but suspended the bad conduct discharge until 15 August 1980.

6.  On 24 March 1980, the Commanding General, U.S. Army Infantry Center, Fort Benning, GA, determined he would not be processed for separation for medical disability and he was transferred to Fort Riley, KS, to serve his sentence to confinement.   

7.  In May 1980, NJP was imposed against the applicant for being absent without leave from 1 May 1980 to 5 May 1980.

8.  On 22 May 1980, the suspension of the bad conduct discharge was vacated.

9.  On 30 April 1980, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

10.  On 7 November 1980, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  He was discharged with a bad conduct discharge on 7 November 1980 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had served a total of 1 year, 1 month, and 10 days of creditable active service with 78 days of lost time.

12.  There is no evidence of record which shows he was diagnosed with alcohol abuse or dependency.

13.  He provided numerous character reference letters from individuals who have a professional and educational association with him.  They attest: 

* He has shown great initiative, leadership, and personal commitment in his professional and volunteer pursuits
* He is extremely dedicated and extraordinarily gifted in his ability to blend both the intellectual discussion with the spiritual reality of what is happening in the community at the individual level and perspective
* He is diligent and very reliable
* He is a great guy with a great spirit


14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

15.  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.

16.  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.

17.  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 contends he was a 17-year old kid at the time of the incident.  However, age is not a sufficiently mitigating factor.  He was age 18 when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  He contends he was suffering from alcoholism.  However, there is no evidence which shows he was diagnosed with alcohol abuse or dependency prior to his discharge.

3.  His sobriety and post service accomplishments are commendable.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

5.  Trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

6.  His record of service included two NJPs, one special court-martial conviction, and 78 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

7.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

8.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120007225





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ABCMR Record of Proceedings (cont)                                         AR20120007225



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