IN THE CASE OF:  	  

		BOARD DATE:  26 February 2015	  

		DOCKET NUMBER:  AR20140011146 


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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge.

2.  The applicant states that he was young and had been injured and his commander wanted him to return to duty so he went absent without leave (AWOL).  He also states that he was told that his discharge would be changed to honorable within 90 days.  He also states that he has recently lost his job and the discharge is impeding his efforts to find another.

3.  The applicant provides no additional documents with his application.

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 10 August 1976 for a period of 3 years, training as an air defense artillery (ADA) short range missile crewman and assignment to the 9th Infantry Division. He completed his one-station unit training at Fort Bliss, Texas and was transferred to Fort Lewis, Washington for his first assignment.

3.  On 25 February 1977, the applicant was a passenger in a jeep that ran into a ditch and he was thrown from the back seat and sustained head and neck injuries.

4.  On 18 June 1978, the applicant was transferred to Germany for duty as a gunner in an ADA battery in Budingen, Germany.

5.  On 5 December 1978, the applicant was granted 25 days of ordinary leave.  He did not return and on 31 December 1978, he was reported as being absent without leave (AWOL).  He remained absent in desertion until he was apprehended by civil authorities and was returned to military control at Fort Carson, Colorado on 28 November 1979.

6.  The applicant underwent a mental status evaluation on 17 December 1979 and informed the examining officer that he did not care for the duty and went AWOL.  The examining official opined that the applicant showed no signs of psychiatric disorder and cleared him for any administrative action deemed appropriate by the chain of command.

7.  On 7 February 1980, he was convicted pursuant to his pleas by a special court-martial of being AWOL from 31 December 1978 to 28 November 1979 and being absent from his place of duty on 26 December 1979.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $299.00 pay per month for 4 months, and a BCD.

8.  On 12 May 1980, the U.S. Army Court of Military Review affirmed the findings and sentence approved by the convening authority.

9.  On 29 September 1980, the applicant was discharged pursuant to a duly-affirmed court-martial conviction.  He had served 3 years, 2 months and 18 days of active service and he had 332 days of lost time due to AWOL.  

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.


11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for 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

   c.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absence and the lack of mitigating circumstances.

3.  Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.  





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)                                         AR20140011146





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ABCMR Record of Proceedings (cont)                                         AR20140011146



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