IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130000453 


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.

2.  The applicant states, in effect, he was a good Soldier who had a problem with alcohol and drug addiction.  This addiction led to nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), a court-martial, and time in a military confinement facility.  After his discharge he entered a treatment facility and attained his sobriety.  He had worked at this treatment facility ever since he completed the program and has made it his goal to assist others in their sobriety.

3.  The applicant provides a self-authored statement.

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 12 February 1980 and held military occupational specialty 19E (M-46/M-60 Armor Crewman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he accrued 161 days of lost time during the following periods:

* 23 October - 12 November 1980 (21 days):  confined by military authorities (CMA)
* 16 September 1981 - 4 November 1981 (50 days):  CMA
* 25 - 27 January 1982 (4 days):  absent without leave (AWOL)
* 5 - 10 February 1982 (6 days):  AWOL
* 16 February 1982 - 22 March 1982 (35 days):  AWOL
* 23 March 1982 - 6 May 1982 (45 days):  CMA

4.  He accepted NJP under the provisions of Article 15 of the UCMJ on:

* 2 February 1980 for possession of marijuana, being drunk and disorderly, and using provoking words and gestures toward a noncommissioned officer (NCO)
* 11 March 1980 for disobeying the direct order of an NCO 

5.  Special Court-Martial (SPCM) Order Number 21, issued by Headquarters, 1st Brigade, 25th Infantry Division, Schofield Barracks, HI, dated 7 November 1980, convicted him of saying to his superior commissioned officer "I don't have to do anything.  F**k you and f**k my platoon leader.  What are you going to do now, stand there or jump," or words to that effect, and of being drunk and disorderly in the barracks.  The court sentenced him to confinement at hard labor for 25 days, forfeiture of $250.00 per month for two months, and reduction to the rank/grade of private/E-1.

6.  SPCM Order Number 43, issued by Headquarters, 25th Infantry Division, Schofield Barracks, HI, on 22 September 1981, convicted him of being drunk at his post as motor pool sentinel, saying "Mother f***er" and using other provoking words to and gestures toward another Soldier and butting him with his chest, 


and wrongfully appearing at the motor pool with his boots unbloused, his shirt untucked, and without his pistol belt and helmet liner.  The court sentenced him to confinement at hard labor for two months, forfeiture of $334.00 per month for three months, and reduction to the rank/grade of private/E-1.

7.  SPCM Order Number 110, issued by Headquarters, U.S Army Armor Center and Fort Knox, KY, on 10 May 1982, convicted him of being AWOL on three separate occasions.  The court sentenced him to confinement at hard labor for 14 days, forfeiture of $367.00 per month for two months, and to be discharged from the Armed Forces with a bad conduct discharge.

	a.  On 30 June 1982, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

	b.  SPCM Order Number 229, issued by Headquarters, U.S Army Armor Center and Fort Knox, KY, dated 28 September 1982, stated the adjudged sentence had been affirmed and would be dully executed.  The portion of the sentence pertaining to confinement had been served.

8.  On 20 October 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (later corrected to show chapter 3), that states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.  He completed 2 years and 3 months of total active service with 161 days of time lost.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 11, in effect at the time (and chapter 3 currently in effect), prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	c.  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.  

10.  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 evidence of record shows the applicant was convicted by three special courts-martial, the last of which ordered his bad conduct discharge.  His final SPCM convicted him of being AWOL on three separate occasion.  His 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 discharge appropriately characterized the misconduct for which he was convicted.

2.  He provided no evidence to show his discharge or the court's decision to find him guilty is unjust or as a result of improper actions.  There is no error or injustice in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded.  

3.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130000453





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ABCMR Record of Proceedings (cont)                                         AR20130000453



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