BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20120022327 


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 upgrade of his bad conduct discharge (BCD) to an under other than honorable conditions discharge (UOTHC).

2.  The applicant states:

* there is no error or injustice in his record
* he decided on 7 May 2012 not to use any more drugs or alcohol after many years of using
* he is currently attending Narcotics Anonymous (NA) meetings
* he has learned how to live a productive life from the meetings
* he knows he will continue to attend the meetings for the rest of his life
* he has never been a violent person and never wanted to hurt anyone
* he earned his BCD and he has nothing against the military 
* he was drinking every day because controlling alcohol was impossible for him 
* alcohol played a part in all the wrong things he did which landed him in the stockade
* upon his release he should have been ordered to rehabilitation because he was a sick person who needed treatment but he did not know it
* now he is just asking for forgiveness for his actions and the problems he created while in the military 

3.  The applicant provides:

* Department of Veterans Affairs (VA) Medical Progress Notes
* third-party letter of support
* treatment center intake letter
* NA attendance and meetings sheets
* copies of clean time key tags and his driver license
* copies of receipts of paid debts
* credit bureau and police reports

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 5 July 1979.

3.  On 22 April 1980, he was found guilty by a special court-martial of behaving with disrespect toward his superior commissioned officer and for disobeying a lawful order from his superior noncommissioned officer (NCO).

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 16 January 1981 for disobeying a lawful order from his superior commissioned officer and for failing to go at the time prescribed to his appointed place of duty.

5.  On 25 March 1981, he was found guilty by a special court-martial of:

* wrongfully communicating a threat to kill another Soldier
* behaving with disrespect toward his superior commissioned officer
* wrongfully appropriating a motor vehicle, property of the United States
* 
behaving with disrespect toward his superior NCO
* disobeying lawful orders from his superior NCOs on two occasions  

6.  He was sentenced to forfeiture of pay, confinement at hard labor for 5 months, and to be discharged from the service with a BCD.  The sentence was approved on 24 April 1981.

7.  He accepted NJP on:

* 12 August 1981 for failing to go at the time prescribed to his appointed place of duty and for disobeying lawful orders on two occasions from his superior NCOs
* 24 September 1981 for disobeying a lawful order from an NCO and for communicating a threat to injure by bodily harm an NCO

8.  On 10 December 1981, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the 24 April 1981 sentence was ordered to be duly executed.

9.  Accordingly, he was discharged on 17 December 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). chapter 3, as a result of court-martial with a bad conduct discharge.

10.  On 24 September 1983, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  He provides VA Progress Notes that show he is suffering from arthrosis of the left hip and other documents that confirm his contention that he is working diligently to maintain his sobriety and to better himself as a citizen.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-10 provided that a Soldier would 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.

	b.  Paragraph 1-13c provided that an under other than honorable conditions discharge was an administrative separation from the service under conditions other than honorable.  It could be issued for misconduct, for homosexuality, for security reasons, or for the good of the service.

13.  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 requests upgrade of his BCD to a UOTHC discharge.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

3.  His record of indiscipline includes NJP on three occasions and two court-martial convictions, one conviction resulting in his BCD.  Based on his record of misconduct, he is not entitled to a change in the characterization of his service.

4.  The supporting documentation he provided was noted and his desire to better himself is commendable; however, without evidence showing error or injustice in his discharge proceedings and/or the characterization of his service, there is no basis to granting the applicant's requested relief.

5.  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 seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

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)                                         AR20120022327



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ABCMR Record of Proceedings (cont)                                         AR20120022327



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