IN THE CASE OF:
BOARD DATE: 8 August 2013
DOCKET NUMBER: AR20120023057
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).
2. The applicant states he served honorably in the U.S. Army for 3 years from
5 October 1978 to 4 October 1981. He reentered the U.S. Army on 31 March 1982 and was discharged on 17 May 1994. He asks that the second period of his military service be characterized as honorable or under honorable conditions.
3. The applicant provides copies of his two DD Forms 214 (Certificates 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. A DD Form 214 shows the applicant entered active duty this period on
5 October 1978, was honorably released from active duty on 4 October 1981 based on completion of required service, and transferred to the U.S. Army Reserve Control Group (Reinforcement).
3. The applicant enlisted and reentered active duty in the Regular Army (RA) on
31 March 1982.
4. He continued to serve on active duty and attained the rank of staff sergeant (SSG)/pay grade E-6 on 19 May 1985. He was reduced to sergeant (SGT)/pay grade E-5 on 14 March 1990.
5. The applicant's records show he was:
* confined by military authorities from 11 through 12 February 1992
* absent without leave (AWOL) from 14 February through 6 March 1992
6. In June 1992, the applicant was convicted at a general court-martial of:
* AWOL
* wrongful use of cocaine
* forgery
7. On 25 June 1992, he was sentenced to confinement for 8 months, forfeiture of $200.00 pay per month for 8 months, reduction to the grade of private (E-1), and to be discharged with a BCD.
8. On 17 September 1993, the United States Army Court of Military Review affirmed the findings and the sentence as approved by the convening authority.
9. Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, General Court-Martial Order Number 8, dated 17 May 1994, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.
10. The applicant's DD Form 214 shows he was discharged with a BCD on
17 May 1994.
a. He had completed 12 years and 22 days of net active service this period.
b. He had 25 days of time lost under Title 10, U.S. Code, section 972.
11. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 that his BCD should be upgraded because he had
3 years of prior honorable active duty service and honorable service during the second period of service under review.
2. Records show a DD Form 214 was issued to document the applicant's period of honorable active duty service from 5 October 1978 through 4 October 1981.
3. Records also show the applicant reentered the RA on 31 March 1982 and he attained the rank of SSG (E-6) in May 1985. However, prior to the incidents that led to his discharge, he was reduced in rank to SGT (E-5) in March 1990 and he was AWOL from 14 February through 6 March 1992. Thus, the applicant's contention that his second period of service was honorable is not supported by the evidence of record.
4. The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20120023057
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ABCMR Record of Proceedings (cont) AR20120023057
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