IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002144 


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 the following:

* an upgrade of his 1992 bad conduct discharge (BCD) to a general discharge based on his 10 years of service
* correction to Item 12 (Date Entered AD (active duty) This Period) of his DD Form 214 (Certificate of Release or Discharge from AD), ending on 10 March 1992, to show 8 August 1976

2.  The applicant states:

   a.  The date of entry on his 1992 DD Form 214 should be 8 August 1976
(i.e.,12 August 1976).  He would like consideration of his 10 years of service for a general discharge.  He wants to be recognized by the Army for his outstanding service to his country, his unit, and all those he proudly served with.  
   
   b.  The proudest day of his life was when he joined the Army in August 1976. He performed his duty, accepted and followed orders to the best of his ability.  He is now disabled since having a stroke and heart attack in 2011 and 2012.  He is very fortunate to be alive to request an upgrade of his discharge.  He wishes to be buried as an old Soldier with the stars and stripes draped over his coffin and taps playing in the background one last time.
   
   c.  He made a mistake in the civilian world when he was young and afraid to face the music.  He has paid for that mistake and he is still living with it.  The time he served and every school he attended, he was outstanding and he made the Army proud.  He would greatly appreciate the Board granting an old Soldier one last and final request.

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 (RA) on 12 August 1976.  He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was promoted to pay grade E-4 on 19 January 1978.

3.  He was honorably discharged from AD on 31 May 1979 for the purpose of immediate reenlistment.  He completed 2 years, 9 months, and 20 days of net active service with no time lost.  His DD Form 214 shows in Item 12a he entered AD on 12 August 1976.

4.  He reenlisted in the RA on 1 June 1979.  He was promoted to pay grade E-6 on 22 August 1982.  He served in Germany from 7 August 1985 to around February 1988.

5.  A DD Form 458 (Charge Sheet), dated 10 March 1988, shows the applicant was charged with one specification of being absent without leave (AWOL) from 4 February 1988 to an unknown date, multiple specifications of with intent to deceive, signing an official record with an unauthorized or false document control number, stealing property of the Defense Reutilization and Marketing Office between 1986 and 1987, and uttering bad checks.

6.  Orders Number 189-13 issued by Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, on 11 October 1990, shows he was apprehended by civilian authorities on 2 October 1990 for the civilian charge of battery.  He was confined in the city jail pending disposition of the charge.  On 3 October 1990, he was given a court date of 23 October 1990 and released and returned to military control.

7.  On 18 October 1990, the Commander, U.S. Army Personnel Controls Facility, recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good the service – in lieu of trial by court-martial.  It appears this recommendation was not favorably considered. 

8.  On 27 February 1991, he was convicted by a general court-martial of being AWOL from 4 February 1988 until 3 October 1990.  He was sentenced to reduction to pay grade E-1 and a BCD.

9.  On 29 March 1991, the convening authority approved the sentence, except for the BCD.

10.  On 19 September 1991, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

11.  There is no indication he petitioned the U.S. Court of Military Appeals for a review of his conviction.  

12.  General Court-Martial Order Number 20, issued by Headquarters, U.S. Army Armor Center and Fort Knox, KY, on 5 February 1992, shows the sentence to a BCD was affirmed and ordered duly executed.

13.  On 10 March 1992, he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Enlisted Separations), as a result of court-martial, in pay grade E-1.  He completed 10 years, 1 month, and 11 days of net active service during the period under review with time lost from 4 February 1988 through 2 October 1990.

14.  His DD Form 214 shows in Item 12a he entered AD on 1 June 1979.  Item 18 (Remarks) of this DD Form 214 shows he reenlisted on 1 June 1979.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-11 that a Soldier would 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 sentence affirmed before it could be duly executed.
	b.  Paragraph 3-7 that an honorable discharge was a separation with honor and entitles 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 be clearly inappropriate.

	c.  Paragraph 3-7b 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.  

16.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, governs the preparation of the DD Form 214.  The regulation stated Item 12 would list the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued.  Item 18 would list all enlistment periods for which a DD Form 214 was not issued. 

18.  Effective 1 October 1979, Army Regulation 635-5 was changed to reflect that the DD Form 214 would not be prepared for enlisted members discharged for immediate reenlistment in the RA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant reenlisted in the RA on 1 June 1979.  On 10 March 1988, he was charged due to being AWOL and several other offenses.  After being apprehended by civilian authorities he was charged with battery.  He was returned to military control on 3 October 1990.  At that time he was recommended for discharge under the provisions of Army Regulation      635-200, chapter 10.  It appears this recommendation was not approved.



2.  In February 1991, he was convicted by a general court-martial of being AWOL from 4 February 1988 until 3 October 1990 and sentenced to a BCD.  On 
10 March 1992, he was discharged pursuant to the sentence of his general court-martial and he was issued a BCD after the sentence was affirmed.

3.  Trial by court-martial was warranted by the gravity of the offense 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.

4.  He provided no evidence to show his discharge is unjust.  There is no error or injustice apparent 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 to a general discharge.  He was an experienced Soldier with over 12 years of service who went AWOL for over
2 years.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

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

6.  With respect to correction of Item 12a of his 1992 DD Form 214, the evidence shows he initially enlisted in the RA on 12 August 1976 and he was discharged on 31 May 1979 for the purpose of reenlistment.  He was issued a DD Form 214 for that period of service crediting him with completion of 2 years, 9 months, and 
20 days of net active service with no time lost.  A copy of this DD Form 214 will be provided to the applicant by separate correspondence. 

7.  He reenlisted in the RA on 1 June 1979 and served until he was discharged on 10 March 1992.  Item 12a of the DD Form 214 for the period ending 10 March 1992 shows the date of his last immediate reenlistment as 1 June 1979.  His 1992 DD Form 214 correctly reflects his record of service and contains no errors. Therefore, this is no basis for granting him the requested relief.






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)                                         AR20130002144



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ABCMR Record of Proceedings (cont)                                         AR20130002144



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