BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140019988 


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:

   a.  He accepted the blame for all the charges in this case even though he was not solely responsible.  He was advised that if he did not admit to all the charges, an individual named Ms. Cxxxx Txxxxx would also be locked up and their newborn baby would be taken away.  He was coached to say "yes sir" or "no sir" and nothing more.  All of this happened under duress and under the guidance of the Judge Advocate General.  Ms. Txxxxx received a general discharge on 25 August 1980.  They received a full military police escort to the Rhein-Main Airport in Frankfurt, Germany, where Ms. Txxxxx and the baby were placed on a plane heading to Boston, MA.  He remained in Hohenfels, Germany, until he stood trial on 12 December 1980.

   b.  He pled guilty to the charges to prevent Ms. Txxxxx and the baby girl named Dxxxxxxx from being separated from one another.  He thought it was the best option at the time.  He did not know what the ramifications were for a bad conduct discharge or how it could hinder him from receiving Veteran's privileges in the future.  That part was not explained to him at all.

   c.  In June 2012, after years and years of searching, his wife was able to locate who he believed to be his daughter all these years, only to discover Dxxxxxxx Nxxxxx Txxxxx was not his child.  He was devastated because from 1980 through 2012 that's what he thought.  He gave up his military career attempting to protect his then fiancée and supposed to be baby girl.  He truly believes the bad conduct discharge was over the top for what transpired and led to the court-martial in the first place.  He served his time at Fort Leavenworth, KS, but to be forever penalized for something that was not his sole responsibility he believes is unjust.

3.  The applicant provides a copy of his DD Form 214 (Certificate 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 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 the cases 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.

2.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-2, on 21 March 1978, for 3 years.  He was awarded military occupational specialty 72E (telecommunications center operator).  He was advanced to pay grade E-3 on 21 March 1979.  He served in Germany from 26 September 1979 through 11 December 1980.

3.  His records also show he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 24 October 1979 – absenting himself from his unit on 22 October 1979; his punishment included 7 days of extra duty; his punishment to a forfeiture of pay for 7 days was set aside
* 12 February 1980 – failing to go to his appointed place of duty on 28 January 1980; his punishment included a suspended reduction to pay grade E-2 and 14 days of extra duty and restriction; he elected to appeal; and his reduction to pay grade E-2 was vacated on 7 March 1980

4.  On 12 December 1980, he was convicted by a special court-martial of four specifications each of wrongfully and unlawfully drawing worthless checks with intent to defraud and for the procurement of articles of value.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay for five months, confinement at hard labor for five months, and a bad conduct discharge.

5.  On 19 February 1981, the convening authority approved the sentence, forwarded the record of trial to the Judge Advocate General of the Army for review by a Court of Military Review, and authorized his placement in confinement.

6.  On 23 December 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

8.  Headquarters, U.S. Army Disciplinary Barracks and Fort Leavenworth, KS, Special Court-Martial Order Number 204, dated 8 April 1982, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the sentence executed.

9.  He was discharged in pay grade E-1 on 5 May 1982, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 11, as a result of a court-martial.  He was credited with completing 3 years, 11 months, and 3 days of active service and time lost from 12 December 1980 through 23 February 1981.  His service was characterized as bad conduct. 

10.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   a.  Chapter 11 - An enlisted person would 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 had been ordered duly executed. 

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  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 court-martial 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 shows the applicant was convicted by a special court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and he was discharged accordingly on 5 May 1982.

2.  Trial by court-martial was warranted by the offenses changed.  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.

3.  He provided no evidence to show his discharge was 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 or a fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.  

4.  Any redress by this Board of the finality of a court-marital 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 the 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.

5.  It is noted, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.



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)                                         AR20140019988





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ABCMR Record of Proceedings (cont)                                         AR20140019988



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