IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120007954 


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 to a general or an honorable discharge.  

2.  The applicant states:

* He left his unit in what he believed was a permissible reason to see his young, ill daughter
* While caring for his daughter, he was detained by Military Police for being in an absent without leave (AWOL) status and he left peacefully without any resistance
* When he returned to his unit, he was taken immediately to the field, and that is when the problems began
* It appears his captain based his opinion on the testimony of two other Soldiers, one of whom was not even present
* Another Soldier who stole assault rifles and sold them to an undercover agent only received an Article 15
* His captain altered his (the applicant's) specialty so he could work directly under his control
* He was thrown into a position without direction, instruction, or training
* There were many discrepancies in his court-martial, including the possibility that his captain fabricated the charges due to his dislike of the applicant
* He was intentionally railroaded by his captain and the testimony of another Soldier, and accused of being AWOL

3.  The applicant provides four character reference letters and an e-mail. 

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 records show he enlisted in the Regular Army on 10 June 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 64C (Motor Transport Operator). 

3.  He served in Panama from 7 October 1980 to 6 October 1982.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar and the Army Service Ribbon.

4.  On 7 January 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.  

5.  On 3 May 1983, contrary to his pleas, he was convicted by a special court-martial.  The court sentenced him to a forfeiture of $300.00 pay per month for 
2 months, confinement at hard labor for 2 months, and a bad conduct discharge for the following:

* Charge I, one specification of being AWOL from 18 March to 12 April 1983
* Charge II, one specification of wrongfully communicating a threat to his company commander

6.  On 17 June 1983, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 52 days, forfeiture of $300.00 pay per month for 2 months, and a bad conduct discharge, and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.
7.  On 1 May 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his case. 

9.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 147, dated 17 September 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed.

10.  He was discharged from the Army on 4 October 1984.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Enlisted Separations) as a result of court-martial with a bad conduct discharge.  This form further confirms he completed 4 years, 1 month, and 7 days of creditable military service during this period and he had the following periods of lost time:

* 24 to 25 August 1980
* 18 March to 15 April 1983
* 19 to 27 April 1983
* 5 May to 13 June 1983

11.  On 23 February 1988, the Army Discharge Review Board determined he was properly and equitably discharged.  Accordingly, it denied his petition for an upgrade of his discharge. 

12.  He submitted multiple character reference letters as follows:

   a.  A letter, dated 12 March 2012, from a friend who describes the applicant as a member of a family-oriented organization whose members are veterans, police officers, and others.  He is a dedicated family man who is involved in the community.

	b.  A letter, dated 14 March 2012, to the Department of Veterans Affairs from a friend who also describes the applicant as a leader.  He is friendly, compassionate, and involved in the community.

	c.  A letter from a friend who has known the applicant for 40 years.  He describes him as hard working individual who is involved in the community and support of other veterans.

	d.  A letter, dated 12 March 2012, from a former U.S. Navy veteran who has befriended the applicant over the years and describes him as a "brother" to him.  

	e.  An email, dated 13 March 2012, titled: Letter of recommendation, from a friend who has known the applicant over the years and describes him as an outstanding leader with sharp skills.

13.  Army Regulation 635-200 provides for the separation of active duty enlisted personnel. 

	a.  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.

	b.  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.  

14.  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 was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  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.


2.  He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The issues he now raises could have been raised during the sentencing and appellate process.  The appellate review was completed and the affirmed sentence ordered and duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

3.  The applicant's post-service achievements and the character reference letters he provides do not negate or erase the offenses he committed.  While his post-discharge achievements are noted, the Army has never had a policy wherein a character of service is upgraded due to passage of time.

4.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is an insufficient basis to upgrade his discharge to either an honorable or a general discharge.

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)                                         AR20120007954



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ABCMR Record of Proceedings (cont)                                         AR20120007954



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