IN THE CASE OF:  

		BOARD DATE:  15 September 2015

		DOCKET NUMBER:  AR20150001517


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 dishonorable [sic, bad conduct] discharge.

2.  The applicant states:

* he is very sorry for leaving the Army without informing anyone he was hurting and in pain; at the time he was young and did not know who he could turn to for help
* he was charged with being absent without leave (AWOL); however, he returned because he realized he was wrong and he tried his best to correct his wrong-doing
* he went AWOL after he received word from home that his mother was sick; she had a lot of health problems and she needed him at home
* this does not excuse him for what he did but he had to go home and help out; his girlfriend was leaving him as well and he just took things into his own hands
* he was wrong, he knows that now, he is very sorry for what he did; the Army was very good to him
* he did return and finish his time; he served his country for 5 years and he learned his lesson
* he is a better man for having been in the military; in his 53 years of life he now has a beautiful wife, a daughter, 2 sons, 3 grandchildren, and a home 

3.  The applicant provides no additional evidence in support of his request.

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 3 September 1980.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Hood, Texas.  After completing his initial entry training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  He was assigned to Company C, 1st Battalion, 50th Infantry Regiment, at Fort Hood, Texas, on or about 10 February 1981.

4.  Before a special court-martial at Fort Hood, Texas on 3 September 1981, he was convicted of a single specification of Charge 1 for violating Article 86 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was convicted of absenting himself from his unit, from on or about 19 May 1981 through on or about 10 August 1981.  His sentence included confinement at hard labor while assigned to the U.S. Army Retraining Brigade at Fort Riley, Kansas. 

5.  He was released from confinement and reassigned to Company A, 2nd Battalion, 34th Infantry Regiment at Fort Stewart, Georgia.

6.  He was reassigned to Company B, 5th Battalion, 327th Infantry Regiment at Fort Richardson, Alaska on 9 June 1983.

7.  Before a special court-martial at Fort Richardson, Alaska on 19 January 1984, he was convicted of three specifications of Charge 1 for violating Article 86 of the UCMJ.  Specifically, he was convicted of:

* specification 1 – failing to go at the time prescribed to his appointed place of duty, on or about 21 October 1983

* specification 2 – absenting himself from his unit, from on or about 2 November 1983 through on or about 23 November 1983
* specification 3 – failing to go at the time prescribed to his appointed place of duty, on or about 25 October 1983

8.  The court sentenced him to reduction to the rank/grade of private/E-1, forfeiture of $350.00 pay per month for 6 months, confinement at hard labor for 45 days, and discharge from the Army with a bad conduct discharge (one previous conviction considered).

9.  The convening authority approved his sentence on 27 February 1984 and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

10.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial on 23 July 1984.  The U.S. Court of Military Appeals denied his petition for review.

11.  Special Court-Martial Order Number 8, issued by Headquarters, Fort Bragg, North Carolina on 30 January 1985, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by Special Court-Martial Order Number 3, issued by Headquarters, 172nd Infantry Brigade, Fort Richardson, Alaska on 27 February 1984, was ordered duly executed.

12.  The applicant was discharged on 30 April 1985, pursuant to his court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 character of service.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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.

	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.  Paragraph 3-10 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 was twice convicted by special courts-martial and both convictions involved periods of AWOL service.  After his first AWOL period, he was retained in service after serving hard labor at the U.S. Army Retraining Brigade at Fort Riley, Kansas.  Two years later, he again committed errors in judgment, as evidenced by his subsequent conviction by a second special court-martial.

2.  The evidence of record shows he was given a bad conduct discharge pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

3.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is an insufficient basis for granting 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)                                         AR20090019040



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001517



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1