BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120018559 


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 (BCD).

2.  The applicant states he was placed on stop/loss for Operation Desert Shield/Storm while out-processing.  He was then in-processed, but a payroll in-processing error led to him not being paid for the duration of his service so he went absent without leave (AWOL).

3.  The applicant provides no additional evidence 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.  On 8 October 1987, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  On 30 January 1988, he was assigned to the 82nd Engineer Battalion in Germany.

3.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) reported his absence since 0600, 21 October 1990.  Item 42 (Remarks) contains the statement "Soldier was suppose to ETS (expiration of term of service) from the Army, but was stopped due to Stop/loss program."

4.  A DA Form 4187 (Personnel Action), dated 20 March 1991, changed his status to "present for duty" effective 0130, 17 March 1991.

5.  On 10 June 1991, he was tried before a general court-martial.  He pled guilty and was found guilty of:

* on or about 21 October 1990, desertion with intent to remain away permanently, terminated by apprehension on or about 16 March 1991
* on or about 24 January 1991, willfully disobeying a lawful order from a noncommissioned officer

6.  His sentence consisted of:

* reduction to private E-1
* a forfeiture of all pay and allowances
* confinement for 4 months
* issuance of a BCD

7.  On 7 August 1991, the convening authority approved the sentence.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 82, dated 28 July 1992, stated the applicant's sentence had been affirmed.  His BCD was ordered executed.

9.  On 2 September 1992, he was discharged with a BCD as a result of his court-martial conviction.  He completed 4 years, 2 months, and 21 days of active service.  He had 257 days of time lost.  An entry in item 18 (Remarks) of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) states he was retained in service 691 days for the convenience of the Government.

10.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  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.  He contends that after being placed on stop/loss, due to a payroll error, he was unable to get paid.  However, he has provided no official documents or other substantive evidence to corroborate his contention.

2.  His trial by court-martial was warranted by the gravity of the offenses for which he was charged.  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.

3.  The seriousness of the charges he was convicted of at his general court-martial clearly shows his service to be unsatisfactory.

4.  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.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20120018559



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ABCMR Record of Proceedings (cont)                                         AR20120018559



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