IN THE CASE OF:	  

		BOARD DATE:  21 November 2013

		DOCKET NUMBER:  AR20130006025 


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 his bad conduct discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant, in effect, states:

	a.  He served in the Army for 8 and 1/2 years.  He loved the United States and he was proud to serve.  He was a very good Soldier.  He was in the gunnery section and he was a squad leader.  He was promoted to E-4 in under a year.  He received his infantry training diploma and a certificate for the 50-mile running club on 7 March 1979.  He took a defensive driving course and received a certificate on 15 August 1979.  In 1979, he took a 1-week track vehicle mechanics course and received a certificate on 29 June 1979.  He also completed the Primary Leadership Development Course, Basic Noncommissioned Officers (NCO) Course, and received certificates for these courses on 7 November 1980 and 9 September 1983, respectively.  He took these courses to improve his skills as he wanted to make the Army his life-time career.

	b.  He was awarded the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Overseas Service Ribbon (2nd Award), NCO Professional Development Ribbon (NCOPDR) with numeral 2, Army Achievement Medal, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Hand Grenade Bar.  He received an honorable discharge on 6 May 1981.  He also received four letters of appreciation and a certificate of appreciation between 9 January 1980 and 22 December 1982.  He served two tours in Korea from 1978 to 1979 and from 1981 to 1982.  

	c.  On 11 February 1984, he was sent to Germany.  While he was there, he received his second Army Good Conduct Medal.  During the beginning of this tour, he was living in the enlisted housing, along with his spouse and his son.  Sometime later, they were moved into officer housing and this is when all his problems started.  The officers began to harass him and his family.  He talked to his commander, told him what was happening, and asked to be moved back to enlisted housing.  He was told no and they continued to be harassed by the officers.

	d.  His spouse couldn't handle it and she went back to the United States.  He was there alone with his 6-year old son.  He asked his commander if he could get a sole parent discharge and he was told no.  They continued to be harassed.  He eventually had a girlfriend move in with him and she helped him with his son.  He was a good father and he loved his son.  One day he let his son go outside to play with the officers' children.  Some of the officers didn't like this so they took his son away from him and put him in a foster home.

	e.  One night he and his girlfriend wanted to be alone so they took his son to a babysitter.  The officers once again took his son away from him and placed him back in the same foster home because of it.  Once again, when he picked his son up he had bruises on him.  He hurt for his son and he became angry with the officers and with the Army.  It was very clear they would continue to do this to his son and he couldn't stop it; his commander didn't care either.

	f.  After this, he was in the field on maneuvers for 2 weeks.  About 4 days before they were to return, his platoon leader told him his son had been taken away from his girlfriend because he was blowing bubbles out of the window.  He was worried and upset and he asked the platoon leader if he could leave to go get his son; he was told no.  Each day he had to stay knowing what was happening to his son scared him.  The fear was overwhelming and it made him angrier at all the officers.  Two hours before they were released, he couldn't handle the fear any longer and he had to protect his son.  When he got back, he picked up his son from the foster home.  He stopped at his house long enough to grab a few things to survive and he left the Army base.  He hid the two of them the best he could.  To obtain food and a place to stay, he had to write checks that he knew would bounce.

	g.  The Army found him and his squad leader and platoon sergeant talked to him.  He told them what had happened since his family moved into officer housing.  They told him if he returned they would not take his son from him again and they would help him work things out.  He was a fool and he believed them.  As soon as they got back onto base they grabbed his son and took him away from him.  This scared him even more and made him madder at the Army.  

	h.  They put him behind a wall by the charge of quarters (CQ) desk until they knew what to do with him.  He asked his platoon sergeant if he would send his son to his father in Wisconsin.  He told them not to send his son to his mother because she did not want him and she abused him.  He was told his father refused to take his son but that was a lie.  They never got a hold of his father and while his son was at his mother's house, he (his son) remembered her sexually molesting him.  Later, while he was sitting behind the CQ desk, someone told the CQ that he had hit his lieutenant and that he was going to jail for it.  It was another lie, he never hit anyone.

	i.  This scared him even more so the next day he went absent without leave (AWOL) again and went to his girlfriend's house.  He hid there for 2 or 3 months before the police found him and put him in jail.  When he went back onto base with his son, he had a hunting knife with him for protection.  This went on his records as it was against Army regulations.

	j.  At one point, before his court-martial hearing, his lawyer and the prosecuting attorney met with him and they both promised him if he pled guilty to going AWOL and having a hunting knife on him, and if he didn't fight what the Army had done to him and his son, he would not have to pay back the money on the bounced checks.  He had never needed a lawyer before so he agreed to it.  However, he was stupid as they never put it in writing; he was sentenced to 10 months in confinement and his grade was reduced to E-1.

	k.  He was released after 6 months due to good behavior.  When he went into confinement, he was told all of his belongings had been put into storage until he got out.  As soon as he was released, he went to the storage building to collect his things and was told they had no record of having his belongings.  They said he had given everything to his friend and he told him he had not done so.  They said they didn't care what happened to his things or where they went.

	l.  On 30 November 1988, he started making phone calls.  He tried to talk to the legal counsel he had but he said he wasn't a lawyer in Germany anymore and he couldn't help him.  He was given the phone number of an appellate lawyer.  When he talked with the appellate lawyer, he was told the amount of money he owed for the bad checks and that the amount was more than double the original amount.  When he (the applicant) stated the other lawyers promised he wouldn't have to pay it back, he was told they could not have promised him that as they had no right to promise something for a business that was not connected to the Army.  The appellate lawyer told him from his own experience he should not argue with the Army.  The Army was bigger than him and if he got a lawyer to fight them, he would be hounded and put through hell.  He was so upset he did not get the lawyer's name. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* seven certificates, dated between 7 March 1979 and 9 September 1983
* four letters of appreciation, dated between 15 January 1980 and 22 December 1982
* four orders, dated between 1 March 1980 and 27 June 1985
* DA Form 2171 (Request for Tuition Assistance - Amy Continuing Education System), dated 27 April 1983
* DA Form 1695 (Oath of Extension of Enlistment), dated 4 September 1984

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 7 November 1978 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was promoted to the rank/grade of specialist four (SP4)/E-4 on 1 March 1980.  He served in Korea from 10 March 1979 to 24 August 1980.

3.  He was honorably discharged from active duty on 6 May 1981.

4.  He reenlisted in the RA on 7 May 1981 for a period of 6 years in MOS 11C and in the rank of SP4.  He served in Korea from 24 August 1981 to 24 August 1982.  On 4 September 1984, he extended his enlistment for 12 months to meet service remaining requirements.

5.  On 2 November 1984, he was assigned to the 3rd Battalion, 8th Infantry Regiment, 8th Infantry Division, Germany.

6.  On 29 September 1986, he was reported AWOL from his assigned unit.   On 2 October 1986, he was returned to military control and to the 3rd Battalion, 8th Infantry Regiment, 8th Infantry Division, Germany.

7.  On 3 October 1986, he was reported AWOL from his assigned unit and, on 2 November 1986, he was dropped from the rolls of his unit as a deserter.  On 13 December 1986, he was apprehended and returned to military control where he was placed in the U.S. Army Correctional Facility, Mannheim, Germany, pending disposition of court-martial charges.

8.  On 16 January 1987, consistent with his pleas, he was convicted by a general court-martial of one specification each of:

* being AWOL from 29 September to 2 October 1986
* being AWOL from 3 October to 13 December 1986
* violating a lawful regulation by carrying a concealed weapon with a blade longer than 3 inches on 13 December 1986
* uttering, with intent to defraud, worthless checks totaling $1,640.87 on divers dates between 29 September to 17 October 1986

9.  As a result, he was sentenced to reduction to private/E-1, forfeiture of all pay and allowances, 10 months of confinement, and a bad conduct discharge.  He was subsequently assigned to the 1st Battalion, U.S. Army Correctional Activity (USACA), Fort Riley, KS.

10.  On 22 April 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to obey a lawful order.

11.  General Court-Martial Order Number 520, dated 21 August 1987, issued by the USACA, Fort Riley, KS, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

12.  On 31 August 1987, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 5 years, 6 months, and 14 days of creditable active service with 282 days of time lost time due to being AWOL and in confinement.
13.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  

	a.  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.

	b.  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.

14.  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's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  He could have raised his claim of harassment by officers or being told he did not have to pay monies owed as a result of his bad checks as issues to be considered in mitigation during the court-martial and/or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's contention that he was a good Soldier for several years is noted; however, that does not mitigate his behavior that led to the court-martial charges he was convicted of.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  

4.  In view of the foregoing, he is not entitled to 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)                                         AR20130006025





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ABCMR Record of Proceedings (cont)                                         AR20130006025



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