RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2005
	DOCKET NUMBER:  AR20050000823 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Mr. Ronald DeNoia

Analyst

The following members, a quorum, were present:


Mr. Stanley Kelley

Chairperson

Mr. Melvin H. Meyer

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states that he would like his discharge upgraded so that when he dies he may be buried by the government. 

3.  The applicant provides no documents in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 May 1982.  The application submitted in this case is dated 10 January 2005.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty on 4 April 1979.  Upon completion of basic training and advanced individual training he was awarded the military occupational specialty (MOS) 12B (Combat Engineer).  

4.  On 29 February 1980, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL).  His punishment consisted of forfeiture of $224.00 per month for two months, suspended $174.00 per month for two months until 3 April 1980; and confinement in Correctional Custody Facilities (CCF) for 14 days, suspended until 3 April 1980.

5.  On 28 July 1980, NJP was imposed against the applicant for failing to go at the time prescribed to his place of duty.  His punishment consisted of forfeiture of $100.00 (suspended for 30 days), extra duty for 7 days, and restriction to company area for 14 days (suspended for 30 days).

6.  On 12 November 1980, NJP was imposed against the applicant for wrongfully possessing marijuana.  His punishment consisted of reduction to private, pay grade E-1, forfeiture of $100.00, and  extra duty for 14 days.

7.  On 5 January 1981, NJP was imposed against the applicant for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of forfeiture of $100.00 (suspended for 90 days) and confinement to CCF for 7 days.

8.  The applicant's military personnel records contain Headquarters, 9th Infantry Division Special Court-martial Orders Number 26 , dated 15 May 1981.
This order shows that the applicant was found guilty, in accordance with his pleas, of one specification of failure to repair, one specification of being absent without leave (AWOL, one specification of disrespect towards a superior noncommissioned officer and one specification of failure to obey a lawful order. 

9.  On 21 April 1981, the military judge sentenced the applicant to reduction to pay grade E-1, forfeiture of $250.00 per month for four months, confinement at hard labor for 75 days, and to be discharged from the service with a bad conduct discharge.  On 15 May 1981, the convening authority approved on so much of the sentence as provided for a bad conduct discharge, forfeiture of $200.00 pay per month for 75 days and reduction to the pay grade of E-1.

10.  On 10 February 1982, Headquarters, 7th Infantry Division and Fort Ord, California Special Court-Martial Orders Number 25, noting the findings and sentence had been approved by the appellate review and the sentence to confinement had been served, ordered the bad conduct discharge executed.

11.  The applicant's DD Form 214 shows that he was separated on 20 May 1981, under the provisions of Chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of court-martial and furnished a Bad Conduct Discharge Certificate.  The applicant's DD Form 214 also shows that he had served 2 years, 2 months and 9 days of active service.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provided, in pertinent part, that a member will 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 has been ordered duly executed.

13.  Title 10 United States Code, section 1552 governs operations of the Army Board for Correction of Military Records (ABCMR).  Section f of this provision of law essentially states that the authority of the ABCMR only extends to correction of a record. 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.

14.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-200, paragraph 3-7, 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Records show the applicant was tried by special court-martial, he was found guilty, and he was sentenced by a military judge.  The convening authority approved the sentence, and the findings of guilty and the sentence were affirmed.

3.  The trial by special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant’s record of service from 4 April 1979 through 20 May 1982 included four Article 15s and a conviction by special court-martial.  As a result, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant clemency in the form of an honorable discharge.

5.  Furthermore, absent evidence of noteworthy or highly meritorious service, there is no basis to grant clemency in the form of a general discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 May 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 May 1984.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sk____  __mhm___  __lmd___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


							Stanley Kelley
______________________
          CHAIRPERSON

INDEX

CASE ID
AR20050000823
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19820520
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Result of a Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6800
2.

3.

4.

5.

6.