IN THE CASE OF:
BOARD DATE: 29 January 2013
DOCKET NUMBER: AR20120012706
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, an upgrade of his bad conduct discharge (BCD).
2. The applicant states he was told he could serve his remaining 1 year to receive an honorable discharge and retain his citizenship, but he was never allowed to do so. The records are true as written but do not "exalt" his true and many achievements as a person or Soldier. He regrets his actions when he was a Soldier and he has no rights as a citizen or benefits.
3. The applicant provides no additional evidence.
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 enlisted in the Regular Army on 16 August 1977, completed training, and was awarded military occupational specialty 91B (Medical Specialist).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on six occasions as follows:
* 22 May 1978, for being absent from his place of duty on two occasions and disobeying a lawful order from a noncommissioned officer (NCO)
* 25 May 1978, for disobeying a lawful order from an NCO and failing to obey a general order by not securing his weapon and protective mask
* 7 September 1978, for disobeying a lawful order from an NCO and failing to go to his place of duty on three occasions
* 27 October 1978, for failing to go to his place of duty on two occasions
* 19 April 1979, for failing to go to his place of duty on two occasions
* 11 May 1979, for failing to go to his place of duty
4. On 31 January 1979, a summary court-martial found the applicant guilty of disobeying a direct order from an NCO and three specifications of failing to go to his place of duty. He was sentenced to reduction to pay grade E-1 and 30 days of confinement.
5. On 12 May 1979, the applicant was apprehended by military authorities and placed in confinement pending court-martial or other disposition of charges. The available evidence shows he had 5 charges with 30 specifications pending.
6. On 29 June 1979, a special court-martial found the applicant guilty of multiple specifications of the offenses of failing to go to his place of duty, failing to obey a lawful order from an NCO, failing to obey a lawful order from a commissioned officer, disrespect toward a commissioned officer, striking a commissioned officer, and assault and battery. He was sentenced to forfeiture of $75.00 pay per month for 4 months, confinement for 2 months, and a bad conduct discharge.
7. On 22 August 1979, the court-martial convening authority approved the findings, except for one specification. He directed the forfeiture of pay commencing with the date of his action, referral of the case to the U.S. Army Court of Military Review, and confinement pending completion of the appellate review.
8. On 17 August 1979, he was placed on excess leave pending appellate review of his court-martial.
9. On 27 February 1980, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence.
10. On 21 August 1980, the applicant was discharged with a bad conduct character of service. He completed 1 year, 10 months, and 26 days of creditable service with 97 days of lost time and 370 days of excess leave.
11. His record contains no evidence of favorable comments, recommendations, commendations, or personal awards. It also does not contain any information related to his citizenship status or the effect his BCD might have on it.
12. On 28 December 1984, the Army Discharge Review Board (ADRB) denied the applicant's requests to upgrade his discharge and change his narrative reason for discharge.
13. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a states an honorable discharge is a separation with honor.
The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. Paragraph 3-11 states a Soldier will be given a BCD 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.
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 record does not contain and the applicant has not provided evidence that he performed any service of such a meritorious nature as to mitigate the extensive number of incidents of misconduct that resulted in issuance of his BCD.
2. There is no available evidence that he was told he had an option to complete his period of obligated service in order to receive an honorable discharge.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the applicant's discharge is commensurate with his overall record of military service.
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.
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ABCMR Record of Proceedings (cont) AR20120012706
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